TN 



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.«*&«- 



NORTHERN DISTRICT OF CALIFORNIA. 



THE UNITED STATES, 






vs. 



ON CROSS APPEAL. 



ANDRES CASTILLERO. ) 



Claim fcv the pine and lpuid<s of *Xw ftfmadm 



ARGUMENT 



OF 



HON. REVERDY JOHNSON, 

DELIVERED OX THE 
Second tincl Tliii'd Days of* JVo^eiiilbei-, I860. 

IX REPLY TO THE GOVERNMENT'S SPECIAL COUNSEL. 



E3POKTED BY SUMNER & CUTTER. 



8 AH FRAlN r arSCQ : 
COMMERCIAL STEAM BOOK AND JOB PRINTING ESTABLISHMENT. 



1860. 




Glass. 
Book 



iu it 



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|n % SWter States District € mxt> 

NORTHERN DISTRICT OF CALIFORNIA. 



THE UNITED STATES, 



vs. ) ON CROSS APPEAL. 

ANDRES CASTILLERO. 



<Mn im tlu pit** mxi $m&$ #t §fcw §ritourft» 



A. R G- IT M E IN" T 

OF 

Hon. REVERDY JOHNSON, 

DELIVERED ON THE 
Second sinxl Tliircl JDaiys of" JXovemlbfe's I860, 

IN KEPLY TO THE GOVERNMENT'S SPECIAL COUNSEL. 



SAN FRANCISCO: 
COMMERCIAL STEAM BOOK AND JOB PRINTING ESTABLISHMENT, 

I860. 






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a. :r g- u m e n t 



Friday, November 2d, 1860. 

Mr. Johnson said: — 

May it please your Honors : The magnitude of the interest 
which the case involves ; the many and peculiar questions of 
law which it presents; the facts on which the claims of our 
clients rest ; their denial ; the grounds of that denial ; the 
manner in which these have been maintained ; the official char- 
acter of the personage who has so figured in the contest ; its 
entire history from its origin to the present hour — cause me to 
feel more 1 than ordinary embarrassment in rising to address 
your Honors. 

That embarrassment is greatly increased by the manner in 
which my friends and colleagues have discharged their part of 
the duty imposed upon us all. Presenting to the Court all the 
learning appropriate to the case, and explaining it with felicit- 
ous perspicuity, they have developed the facts and applied the 
evidence with an acuteness and. power which makes me 
despair of being able to suggest anything having even the 
air of novelty. All that I dare hope is, that I may submit 
some views which will further assist the deliberations of the 
Bench. 

A professional career, now of nearly half a centuiy, bring- 
ing me into immediate connection with almost every variety of 
official controversy, and an acquaintance from reading, yet 
more extensive, of such controversies in every civilized land, 
has never brought to my knowledge a case so conducted as 
this has been on the part of the Government. So extraordi- 
nary has it been, that at times I almost doubted whether I 



was living under a Government of laws, and breathing the air 
of Justice and Freedom. The plainest principles of both have 
been so grossly violated ; -the claims of suitors so wholly dis- 
regarded ; the feelings of gentlemen so ruthlessly insulted ; the 
courtesies of life so absolutely forgotten ; the comity due to a 
feeble foreign nation — and because feeble, so shamelessly 
trampled upon, — that I could hardly credit that it was all done 
under the sanction of a Government, whose highest duty and 
special pride it should be to establish an elevated standard of 
public morality, and to throw wide open all the avenues which 
might be necessary to the vindication and establishment of 
truth and justice. 

That the agents of a free and enlightened people should use 
their short-lived power — short-lived as, I thank God, it is — to 
keep from the Court the truth and the evidence of the truth 
upon which this case should rest; should entrench themselves 
behind the laws, real or supposed, of the defense, for the pur- 
pose of presenting its discovery to them ; and apparently hope, 
that by such means they might confiscate private property, not 
to be accomplished if the truth was discovered, — would in any 
Government under the sun be hardly thought credible. 

And yet, before I have done, may it please your Honors, I am 
sorry to say that I hope to show that that has been precisely 
the conduct of those who have managed this case on the part 
of the Government. 

I rise, may it please your Honors, to aid you in the duty of 
thwarting such efforts ; to assist you in what I am sure is your 
desire — to do all that in you lies to vindicate the cause of truth 
and justice, to preserve the good name of our country, to 
redeem its pledged honor, and to rescue these suitors from the 
load of scurrilous abuse which the Government has thought 
proper to heap upon their heads. 

My colleagues have anticipated me in the duty ; and for the 
manner of doing it, one of them has received the rebuke of the 
learned counsel of the Government. His (Mr. Benjamin's) ar- 
gument was derided, his rhetoric unkindly criticised ; throwing 
aside its alleged insulting reproaches upon the Attorney- 
General and its alleged appeals to the public, your Honors 



have been told it was but a repetition of what had long since 
been letter said in behalf of his clients by another. 

On the special attorney's stricture upon the argument, I 
have nothing to say. I leave it to the judgment of your Hon- 
ors. Its power is too fresh in my own recollection to need a 
word in its support. I leave that part of the reproof without 
remark. 

But, upon the other topic, I cannot refrain from saying that 
however high my brother's estimate may be of his own profes- 
sional sense of duty, he sins against all the laws of good taste 
when he indulges in harsh animadversions upon the conduct 
of J. P. Benjamin. That gentleman is in my presence, I for- 
bear, therefore, to say of him all that I think and feel. Eich 
in all the learning that becomes the accomplished lawyer, with 
a power of argument rarely, if ever, surpassed ; his eloquence, 
yet apparently thrilling through this chamber, delighting, as it 
did, the ear of the Bench and all who had the happiness to 
hear it ; his uniform courtesy to the Bench and the Bar ; his 
marked regard for the feelings of his adversary ; his social qual- 
ities and intellectual endowments, that make him the delight 
of every refined and cultivated circle — will retain for him undi- 
minished the esteem and admiration of all who have the good 
fortune to know him, although he may not have been able in 
this instance to have reached that high degree of professional 
courtesy so strongly recommended and attractively illustrated 
by the special counsel of the Government ! He will continue 
to be, in despite of that omission which, perhaps, he will never 
be able to supply in the future, the ornament of the Senate of 
his country, and the pride and boast of its National Bar. 

I have done with this topic, may it please your Honors. I 
regret, greatly regret, the necessity, which, as I supposed, ren- 
dered it necessary to indulge in such reflections. 

I proceed to the argument, and I shall endeavor to conduct 
it with all the mildness that the circumstances will permit. 

The propositions which I shall seek to maintain are these : 

First. That the claim for the mine is before the Court. 

Second. That it is one which your Honors, if you believe the 
facts on which the claim rests, are bound to confirm under the 



act by whose authority you are now here, as far as this case is 
concerned. 

And, before stating the other propositions I proceed to 
argue the preliminary objection involved in these which I 
have stated. 

It is objected by my brother upon the other side, that what- 
ever may have been the purpose of the pleader, he has so 
inartificially performed his work that he has failed to bring 
before you for confirmation the mining title of his clients. 

This upon the part of my brother, is a modern discovery. 
It was not made before. The decision of the majority of the 
Board who confirmed the title, as well as the decision of the 
third Commissioner who rejected the title, assumed that the 
claim to the mine was presented for rejection or confirmation. 
I have stated that it is a modern discovery of the counsel upon 
the other side ; for otherwise I am unable to account for the 
mass of evidence which, without objection, he has suffered to 
be taken — and has taken himself — in relation to this very 
claim, which swells the record up to the size in which your 
Honors behold it. 

And now, at the last moment, when all other efforts have 
failed, the counsel for the Government, in behalf of the Govern- 
ment, in order to preserve to the Government this property, 
according to their estimate of incalculable value, rely upon 
this — I was about to say, miserable — technical objection! 

Now, the objection, may it please your Honors, involves the 
mining petition. Was it the purpose of the petition to present 
the claim ? The whole title to the mine is set out with all the 
particularity necessary to present the claim for adjudication to 
the tribunal to whom the petition was presented; the very 
papers that my brother upon the other side alleges are fraudu- 
lent, are all there specially referred to and relied upon as the 
muniments of the title ; the continual possession, and the ex- 
penditure consequent upon a belief of the title swelling up in 
amount to $930,000, are alleged ; and the petition concludes : 
(Transcript, page 8)- — " And the petitioner relies for confirma- 
tion of title upon the original documents, copies of which are 
transmitted herewith ; and upon such other and further proofs 



as they may be advised are necessary." "What title did they 
expect to be confirmed? The title to the two leagues? Why, 
that in comparison with the value of the whole matter in dis- 
pute was as nothing. The title to the mine also, as evidenced 
by the introduction of all the papers relied upon by the peti- 
tioner ; the saving to themselves the expenditure of nearly one 
million of dollars — u as well as by all other proofs applicable 
to their title, that they might at any time during the contro- 
versy be able to produce." 

The Board, all of them first holding that this title was before 
them, as well as the title to the two leagues, affirmed this title 
and rejected the title to the two leagues. What was then done 
by the parties upon the other side ? 

From the decision of the Board affirming the title to the 
mine, the United States took an appeal ; and here is their pe- 
tition, upon page 132 of the Transcript : 

The United States, by their attorney, represent that this 
cause is for a review of the decision of the U. S. Land Com- 
mission, whereby the claim of the Appellee was confirmed in 
part, as will appear by reference to the record in the case ; 
that a transcript of said record was filed in this Court, Feb. 
26, 1856; that a notice of appeal was filed on the part of the 
United States, April 15, 1856 ; that the land claimed lies in 
this District, and that said claim is invalid. 

Wherefore appellants pray that this Court reverse the de- 
cision of the said Commission, and decree the said claim in- 
valid. 

The answer to that petition, intended to take issue upon the 
facts presented in that petition of appeal, is found on page 142 
of the Transcript ; and it reads thus : 

That his titles to the mine and lands of New Almaden, as 
set forth and described in his petition to the Board of Com- 
missioners, and in the documentary and other evidence filed 
in this case, are good and valid titles ; that the land, property 
and interest so claimed by him are situate in the Northern 
District of California, and within the jurisdiction of this Court. 

And he prays this honorable Court to affirm so much of the 
decision of the Commissioners as confirms his said claim. 

This is immediately followed by a notice on the part of the 



8 

United States, signed by the then District Attorney of the 
United States, to the appellee, to produce certain papers, with 
which it is unnecessary to trouble the Court by reading ; all 
of which papers relate to the title to the mine. 

And that is followed by a further notice, upon page 198 of 
the Transcript, for an additional production of papers, some 
ten or fifteen in number ; all of which relate to the mine. 

The papers are produced for the second time as evidence ; 
so offered, so given. The case is now for hearing. Not a 
whisper of objection fell from the lips of the counsel for the 
United States, that the whole of this evidence had nothing to 
do with the case before the Court. If they had thought so, 
may it please your Honors, they ought to have demurred to 
the petition. 

But where does my brother find that any petition is neces- 
sary ? The language of the Act of 1851 requires no petition. 
The 8th section says that " Each and every person claiming, 
etc., shall present the same to the said Commissioners." 
Whether it is to be done in the form of a petition, or by the pre- 
sentation of the title papers upon which the claim rests, the 
statute says nothing. It could not be tolerated in a Court of 
last resort, upon an appeal from a judgment pronounced upon 
an issue admitted on all sides to have been before the Court, 
to adjudicate on each of every supposed or real defect, if the 
objection had not been made at the time. It is a rule of uni- 
versal practice necessary to the performance of justice, that an 
appellate tribunal will not permit an objection to be taken be- 
fore itself for the first time, which, if taken in the Court below, 
might be corrected. I cite no authorities for such a principle 
of elementary law. 

But, may it please your Honors, have you no power to au- 
thorize an amendment ? You are an appellate Court ; an ap- 
peal from the decision of the Commissioners is given to you 
as a Court. You look to the constitution of this tribunal — 
to what made your powers here as a Court — in acting ; and in 
the absence of an express or implied restriction upon your au- 
thority to amend, that authority exists in every case, and of 
course in this. And the result is, that if there was any found- 



ation at all for the objection that occurred to the special at- 
torney, the Court would direct the prayer of the petition, in 
that respect, to be amended. Would it not be amended, may 
it please the Court, if it was an ordinary case of equity pleading ? 

The case of the petitioner is made out in his petition. The 
supposed defect is not making the prayer for relief coextensive 
with the necessities of his case, as the case is presented ; he 
makes one prayer, which does not cover his entire claim. Your 
Honors will not permit the mistake of counsel, not called to 
the attention of the Court below, when they could, and would 
have been corrected, if called to the Court's attention below, to 
injure the client in the appellate tribunal, but direct at once the 
amendment to be made. My brother upon the other side 
would have saved himself an immense deal of labor ; saved 
his intellect an immense deal of wear and tear; he need not 
have subjected himself to the intellectual trial between himself 
and the Mexican witnesses, nor have pursued the game he at- 
tempted to play with my colleague, as a witness, if the case 
was not before the Court — unless he is much more fond of labor 
than lawyers generally are. 

Well, now, may it please your Honors, if the claim is before 
you, the next question under this head is : Is it a claim that 
can be legitimately before you under the provisions of the Act 
of 1851 ? 

How is that Act to be construed, if there is any doubt upon 
its face in this or any other particular ? To solve the doubt, 
where the objection in the particular case is, that it does not 
cover a case intended to be provided for by the treaty, you go 
to- the treaty. And, if going to the treaty, you discover that 
the case before the Court was intended to be embraced by the 
treaty, then, although the words of the act passed for the pur- 
pose of carrying the treaty into execution may be doubtful, 
you give them a construction to cover everything that the 
treaty was intended to protect. 

What was the treaty intended to protect ? Private property 
of every description belonging to Mexicans, or to anybody else, 
derived from the Mexican Government, having its origin in 
Mexican law, depending for its validity upon Mexican juris- 



10 

prudence and common law statute. And why ? Because, in 
this enlightened age of the world, nobody has ever supposed 
that there was any foundation for the principle which the 
coarse intellect of Bynkershoek thought proper to announce — 
that private property could be destroyed, either by conquest or 
by cession. 

It is not necessary to inquire into the effect of conquest, be- 
cause, in this particular, there is no conquest. It is only neces- 
sary to see what the Government of the United States have 
undertaken to do. Have they by their treaty intended to pro- 
tect every species of property known to the laws of Mexico, 
and valuable in point of fact ? 

Article 8. —Mexicans now established in territories pre- 
viously belonging to Mexico, and which remain for the future 
within the limits of the United States, as defined by the pres- 
ent treaty, shall be free to continue where they now reside, or 
to remove at any time to the Mexican Eepublic, retaining the 
property which they possess in the said territories, or disposing 
thereof, and removing the proceeds wherever they please, with- 
out their being subjected, on this account, to any contribution, 
tax, or charge whatever. 

Those who shall prefer to remain in the said territories, may 
either retain the title and rights of Mexican citizens, or acquire 
those of citizens of the United States. But they shall be under 
the obligation to make their election within one year from the 
date of the exchange of ratifications of this treaty ; and those 
who shall remain in the said territories after the expiration of 
that year, without having declared their intention to retain the 
character of Mexicans, shall be considered to have elected to 
become citizens of the United States. 

In the said territories, property of every kind, now belong- 
ing to Mexicans not established there, shall be inviolably re- 
spected. — The present owners, the heirs of these, and all Mexi- 
cans who may hereafter acquire said property by contract, 
shall enjoy with respect to it guaranties equally ample as if 
the same belonged to citizens of the United States. 

We present the claim to a mine. We say the title was 
derived from Mexico. We produce the title papers, and estab- 
lish by proof — as far as this part of the argument is concerned 
— to be assumed as true, and as evidence of such title. 
My learned brother upon the other side, and the dissenting 



11 

Commissioner before the Board, maintained that it is a case 
not covered by the Act of 1851. That it was embraced by 
the treaty, if there could be any doubt from the language and 
words of the treaty, is admitted by Mr. Commissioner 
Thompson. That part of his opinion is at page 127 of the 
Transcript. He tells us, " That a compliance with the terms 
of the ordinance would give a right of property in the mine, 
which the treaty of Guadalupe Hidalgo would protect, if the 
law in which that right is founded is not abrogated by the act 
of cession, does not admit of controversy." 

I have a right, therefore, to assume it as true, that if this is 
property, it is protected by the treaty ; and the only question 
for your Honors to decide is : Is it covered by the act of 1851 
— under whose authority you are acting ? 

That act was passed to carry into effect the provisions of 
that treaty ; and so far as relates to real property, is undis- 
puted. With personal property it did not interfere. It left 
the title to personal property to be decided by the local 
Courts, under the authority of the general jurisprudence of 
the State, or of the United States. But the United States, 
with reference to real property, or interest in real property, had 
a policy of its own. That policy in relation to similar treaties 
was carried out by the act of 1824, and the antecedent acts 
passed under provisions to carry into effect the treaties with 
Spain and with France. All that time Congress thought that it 
was not necessary to provide any particular mode of passing 
upon titles derived from Spain or from France during the period 
that the territories ceded were the property either of Spain or of 
France, where those titles were consummated so as to vest in their 
owners an estate in fee which could be maintained in Courts of 
Justice by ordinary proceedings; but that it was necessary to 
provide for all cases of inchoate titles which, at the date of the sev- 
eral treaties that those acts were passed in relation to, had gone to 
such an extent as to bind, at the moment of the cession, the 
conscience of the former Government. 

California, it was imagined, with reference to these titles, was 
in a different condition. It was a distinct province of Mexico ; 
sparsely populated. The United States did not know the pos- 



12 

sible extent of the titles — the real and consummated titles — 
and of course did not know to what extent the domain ceded 
by Mexico had been converted before the cession into private 
estate. They made, therefore, the Act of 1851 more extensive 
than the provisions of the antecedent legislation in relation to 
other treaties ; and the policy of that course upon the part of 
the Government, is stated by the Chief Justice — Taney — in the 
case of Fremont vs. The United States, to be found at page 
542, 17 Howard's Keports. I read from page 553. After 
speaking of the acts passed in relation to the cessions of Louisi- 
ana and Florida, the Chief Justice says : 

The laws of Congress giving the jurisdiction, were differ- 
ent in one respect, and the condition of the countries, as well 
as the laws and usages of the nation making the grants, were 
also different. It will be seen from the quotation we have 
made, that the 8th section embraces not only inchoate or equi- 
table titles, but legal titles also ; and requires them all to un- 
dergo examination, and to be passed upon by the Court. The 
object of this provision appears to be to place the titles to land 
in California upon a stable foundation, and to give to the par- 
ties who possess them an opportunity of placing them on the 
records of the country, in a manner and form that will prevent 
future controversy. 

Now what have they done ? The 8th section of the Act 
of 1851 provides that " Each and every person claiming lands 
in California by virtue of any right or title derived from the 
Spanish or Mexican Government, shall present the same to the 
said Commissioners when sitting as a board, together with such 
documentary evidence and testimony of witnesses as the said 
claimant relies upon in support of such claims ; and it shall be 
the duty of the Commissioners, when the case is ready for 
hearing, to proceed promptly to examine the same upon such 
evidence, and upon the evidence produced in behalf of the 
United States, and to decide upon the validity of the said claim, 
and, within thirty days after such decision is rendered, to cer- 
tify the same, with the reasons on which it is founded, to the 
District Attorney of the United States in and for the district 
in which such decision shall be rendered." 

The 11th section provides " That the Commissioners herein 



13 

provided for, and the District and Supreme Courts, in deciding 
on the validity of any claim brought before them under the 
provisions of this act, shall be governed by the treaty of Gua- 
dalupe Hidalgo, the law of nations, the laws, usages and cus- 
toms of the government from which the claim is derived, the 
principles of equity, and the decisions of the Supreme Court 
of the United States, so far as they are applicable." 

Well, all that it is necessary to do, may it please your Honors, 
is to show that the particular claim is derived from Mexico ; 
that the title set up and asked to be confirmed is a title, in the 
language of the act, ''derived from the Spanish or Mexican 
Government." 

Now, it is said that it was not the purpose of the act to cover 
a mining title. It is admitted to have been the object of the 
treaty, but it is not the design of that act, because it is not a 
claim to lands ! And we have had a brilliant metaphysical 
discussion on the part of my brother on the other side, to tell 
us what lands are, and what lands are not ; and he arrived at 
the very satisfactory conclusion that a quarter-dollar thrown on 
the surface .of the land, was not land. Well, that I can see. 

He said, in the opening of the case upon the part of the Govern- 
ment, that the act covered only an absolute interest in land ; the 
fee simple, as contradistinguished from any lesser title. He 
must go to that extent, or the whole argument fails. Then, if 
by the laws of Mexico there could be in the real estate of Mex- 
ico estates for life, estates for years, estates in fee tail, estates in 
fee simple conditional, as these several estates are known to the 
Common Law of England and the United States, the moment 
the country was ceded to the United States they all became 
vested in the United States. Property in Mexico — an interest 
in lands in Mexico — to be recovered by the ordinary proceed- 
ings provided by the laws of Mexico for the recovery of inter- 
est in real estate — liable to sale in Mexico — liable to be for- 
feited as real estate in Mexico, was not within the treaty, or, 
if within the treaty, not within this statute ! 

I have shown you that it was the object of the treaty to 
protect every kind of interest in real estate. Now, suppose 
this Act of 1851 is doubtful in any particular instance. There 



14 

is one consideration which would force your Honors to come 
to the conclusion to which we invite you, and that is this : that 
all claims to land not confirmed by this act, under the provis- 
ions of this law, by the Board of Land Commissioners, if not 
appealed from — by the decision of the District Court, if that 
be not appealed from — by the final decision of the Supreme 
Court of the United States, where there is an appeal — shall be- 
come a part of the public domain of the United States. Then 
my brother would have you to believe that the Congress of the 
United States, with the faith of the nation pledged to protect 
every claim derived by any kind of title from Mexico, in- 
tended so cunningly to devise their statute as to confiscate — 
for aught that your Honors can know — to the United States, 
more than one-half of the claims to land in California derived 
from titles given by Mexico. 

But to apply it to the particular case. The mine, says Mr. 
Attorney General and his representative here, is of inestimable 
value; it has yielded already eight millions of dollars to its 
possessors, with which they ought to be satisfied — according to 
him — if they are permitted to go free, instead of having the 
money taken from them, and spending the rest of their lives in 
the penitentiary ! Beautiful language that for an officer of the 
Government! Some of them would not look well in that place ! 
The Attorney General tells us that arithmetic can hardly cal- 
culate the value — of what? Of this estate. He does not pre- 
tend to say it is not an estate in land. Of this mine. He does 
not pretend to say that, if the title is in us, it is not protected 
by the treaty. He does not set up the objection that the Act of 
1851 does not embrace it. I will do him the justice to say 
that. But his representative here tells your Honors, that al- 
though it be of such value, and although our alleged right to 
hold it, is a right derived from the laws of Mexico, under a title 
justified by the laws of Mexico, it is one that we cannot get 
confirmed under the provisions of this Act of 1851 ; because 
the Act of 1851 has left out so much of the property intended 
to be secured by the treaty of 1848 ! 

Could you give it that interpretation, may it please your 
Honors, even if you supposed it to be doubtful ? No ; cer- 



15 

tainly not. I am addressing myself to just men, anxious, de- 
termined to preserve the good faith of our common nation ; 
and I have no doubt, therefore — not the slightest — that your 
Honors will hold with the majority of the Board by whom the 
title to this mine was confirmed, that it is within the provisions 
of the Act of 1851. 

But the Supreme Court have told you, in a decision pro- 
nounced the term before the last in Fossatt's case (which was 
supposed to involve the claim to this mine), what was the 
object of the treaty, and the object of the act of 1851. I read 
from page 448, 21st Howard's Reports: 

These acts of Congress do not create a voluntary jurisdiction 
that the claimant may seek or decline. * * * * This 
jurisdiction comprehends every species of title or right, whether 
inchoate or complete ; whether resting in contract or evinced by 
authentic act and judicial possession. The object of this in- 
quiry was not to discover forfeitures or to enforce rigorous con- 
ditions. The declared purpose was to authenticate titles, and to 
afford the solid guarantee to rights which ensues from their full 
acknowledgment by the supreme authority. 

So at pages 450 and 451 : 

The United States did not appear in the Courts as a conten- 
tious litigant. 

They are reproving in advance those who have managed 
this case. They (the United States) did not appear in the 
Courts as a contentious litigant. But how did they appear ? 

As a great nation, acknowledging their obligation to recog- 
nize as valid every authentic title. 

And what else ? By closing up the doors by which evidence 
was to be obtained for and against the title? By denouncing 
the whole Mexican Nation, and asking your Honors to presume, 
as a presumption of law — taught to you as a jury, — that they 
are all false swearers — equal in that respect to all the swearers of 
Catholic Christendom? No, may it please your Honors; but 



EVERY AUTHENTIC TITLE, AND SOLICITING EXACT INFORMATION 



16 

TO DIRECT THEIR EXECUTIVE GOVERNMENT TO COMPLY WITH 
THAT OBLIGATION." 

Mr. Attorney General, when he wrote the letter to which I 
will call your Honors' attention by and by, and when he wrote 
his opinion in relation to California titles in general, and the 
New Almaden title in particular, had not read that lesson upon 
national morality taught us by the Supreme Court of the 
United States. 

Now, may it please your Honors, the title being before you 
for judgment, the next question, and the only question which 
can excite any interest, or could excite any interest — in the 
public mind at least, and in that of the Court, — is : Whether 
that title was fairly acquired or not ? 

We have in these pleadings, repeated over and over again 
in the argument, the charge of false ; fraudulent ; forged ; 
fabricated. Not satisfied with applying all these epithets to 
it, it was also " antedated ! " And then, as a legal conclusion — 
for the pleader seemed to think the Court would not see that 
that was the result of the charge, if made good, — it was, be- 
cause it was " false, forged, fraudulent and fabricated," null and 
of no effect. 

Now, I propose, may it please the Court, very briefly— for 
the whole ground has been so well covered by my colleagues, 
that I am satisfied it is quite unnecessary — to examine into the 
truth of these charges. 

There are some things about which the counsel on the 
other side and ourselves do not differ. We start from them, 
therefore, as common ground. 

There was a man — I believe my friend on the other side 
admits there was such a man in existence once as Andres 
Castillero. There was such a man as this petitioner — and 
probably is now; he is not "forged;" and he is not "fabri- 
cated" for these purposes. That same man was here in 1845. 
He was a Mexican ; conversant with the science of mining (if 
it be a science) ; anxious to show his skill ; glad in that way, 
not only to promote his own interest, but to promote the 
interest of his country ; and, in the latter part of 1845,, he 
had discovered this mine. That is admitted. 



17 

Me. Randolph — Discovered the quicksilver in it. 

Mr. Johnson — Well, that is the same thing. "Mine" and 
" quicksilver" are synonymous terms. What is his belief, may 
it please your Honors? That he thought it exceedingly valua- 
ble. How valuable ? More valuable than the Almaden mine 
of Spain — and its value could hardly be counted at that time 
in dollars. What did he think when he discovered it ? That 
it would be a very good thing to make it his own private 
property, if it could be accomplished. But he had no means 
of his own; and the very first step that he took, evidenced by 
any authentic written act, was executing a contract of part- 
nership (which bears date November 2, 1845), by which he 
takes with him as partners General Jose Castro, Secundino and 
Teodoro Robles, and Padre Real. 

This contract of partnership, my brother on the other side 
admits, was made on or about the 2d of November, 1845. It 
is therefore an authentic paper. What did it look to ? The 
working of this mine. The first article says: 

" Don Andres Oastillero, conforming in all respects to the 
Ordinance of Mining, forms a regular perpetual partnership 
with the said persons in this form ;" and then goes on to state 
the terms of the partnership. 

Now, he has discovered the mine; he values it highly ; he 
enters in good faith, on the 2d of November, 1845, into a con- 
tract of partnership to work it. What else did he do, about 
which there can be no dispute ? 

He knew that there were mining laws in Mexico, in force 
here, under which the individual discoverer could secure to 
himself the mine discovered. What would he be likely to do ? 
To proceed according to such laws. What do we say he did ? 
Denounced and registered the mine ; wrote to Mexico, where 
at last his title was to be confirmed ; sent specimens of the ore 
there. What for ? To prepare the authorities in whom was 
vested the power to confer upon him the title, for the application 
which he contemplated making, to get the title. He goes to 
Mexico ; and being in Mexico, the discoverer of the mine or 
denouncer of the mine, what would he have done in all proba- 
bility? Taken the steps in Mexico necessary to secure the title. 



18 

Where would these carry him? To the very Department of 
the Government of Mexico, in which we say he appeared. 
What would he do when he got there ? Precisely what we 
say he did. 

Well, then, it is clear, may it please your Honors ; no man 
can doubt, because every man, placed in his condition, feels 
that he would have done the same thing ; that the very acts, 
which we maintain as established upon evidence upon which 
the mind cannot doubt, were done by the discoverer of this 
mine, were the very acts that any man in his senses, situated 
as he was, would have done. 

Now, what did he do — as we say, before he went to Mexico ? 
An official communication, dated the 21st of April, 1846, was 
made by the Junta de Fomento to General Tornel, Director of 
the National College of Mining, sending specimens for assay 
with copies of Castillero's letters to Herrera and Moral. That is, 
before he arrived. How these are proved, I will tell the Court 
by-and-by. The minutes of the proceedings of the Junta Facul- 
tativa of the College, of the 24th of April, 1846, (dated in point 
of fact, the 24th of March, but evidently should be dated the 
24th of April), prove what I have stated. 

An official communication, dated 29th of April, from Tornel, 
Director of the College, to Moral, President of the Junta Facul- 
tativa, acknowledges the receipt of a letter from Moral of the 
24th of April, 1846, communicating the result of the assay. 

In an official communication, dated the 29th of April, 1846, 
from Tornel, the Director of the College, to the Junta de Fo- 
mento, was communicated the result of the assay. 

In an official communication, dated the 5th of May, 1846, 
from the Junta de Fomento to the Minister of Justice, the dis- 
covery of Castillero was made known to the President. 

On the 12th of May, 1846, Castillero proposed to the Junta 
to contract for the working of the mine. 

On the 14th of May, 1846, there was an official communica- 
tion from the Junta to the Minister of Justice, announcing the 
original foregoing contract, and urgently recommending the 
President of the Kepublic to agree to it. 

On the 20th of May, 1846, an official communication from 



19 

the Minister of Justice to the Junta de Fomento ratines and 
approves said contract in all its parts. 

An official communication of the 20th of May, 1846, from 
the Minister of Justice to the Minister of Eelations, communi- 
cating the President's approval of Castillero's contract with the 
Junta de Fomento, and grant of two square leagues on the 
land of his mining possession, directs the Minister of Eelations 
to issue the proper orders. 

On the 23d of May, 1846, the orders referred to in that com- 
munication, are stated to have been issued. 

On the 23d of May, 1846, in an official communication ad- 
dressed by the Minister of Eelations to the Governor of the 
Department of California, setting forth the President's appro- 
val of Castillero's contract, and grant of two square leagues on 
his mining possession, the Governor is ordered to put him in 
possession of said land ? 

That is the two league grant. 

So your Honors see, if these things actually occurred, they 
are precisely what Castillero would have endeavored to obtain 
after making the discovery of this mine and going to Mexico 
— where the title, through this instrumentality, could be con- 
summated. 

Now, my brother says that these papers — and several others 
to which I shall have occasion to advert by-and-by — were all 
forged, fabricated, false, fraudulent, antedated. He says so 
still. 

" A man convinced against his will, 
Is of the same opinion still." 

Now, may it please your Honors, how are you to approach 
the consideration of this question of fraud and falsehood upon 
the part of a claimant who produces evidence of the official 
act of a foreign Government ? 

In the case of Arredondo, Mr. Justice Baldwin, speaking 
for the Supreme Court, laid down two rules which he said 
were incontrovertible. The first was : That actual fraud is not 
to be presumed ; but is to be proved. By whom ? By the 
party who alleges it. Second: That, if the motive and design 
of an act may be traced to an honest, legitimate source, equally 
as to a corrupt one, the former should be preferred. 



20 

The United States now are for reversing these two rules. 
They ask us to prove in advance of other proof in relation to 
the production of the documents of title derived from the 
admitted authorities of Mexico, that they are not false, and 
fraudulent, and forged, and fabricated ! There is no such rule 
known to justice or to morals. The burthen of proving the 
fraud is, in this case, on the Government, who asserts it. The 
obligation on the claimant is complied with when he produces 
his prima facie evidence of his title; consisting in the archives 
in which, he says, the title is to be found recorded ; authenti- 
cated by the acts of the public officers of the Government 
from whom the title was derived. In this case he has gone 
infinitely further. He has produced here the very officers 
themselves, to prove that all these titles were fairly and 
honestly obtained. When was that done? About eighteen 
months ago. Before then, may it please your Honors, we had, 
as I think, evidence enough to have put the United States 
upon the inquiry as to the authenticity of our documentary 
title. Our Minister in Mexico, Mr. Forsyth, a man whose 
integrity nobody will question, had stated that he had exam- 
ined into all those archives ; that the copies we produce he 
knew to have been fairly copied from the originals on file ; 
and that he saw — to use his own language — " no reason what- 
ever to doubt the integrity of the entire transaction." 

But the property is a large one. The title so authenticated 
is alleged to be defectively proved ! The taint of fraud is still 
upon it, in the estimation of the counsel for the Government, 
here and in Washington. The character of these gentlemen 
(the claimants) is still unrelieved. Fortunately for them they 
had the means of producing additional evidence, calculated, as 
they supposed, as their counsel supposed, as everybody else 
supposed — except the counsel for the United States — to place 
the charge entirely beyond the scope of belief. They g) to 
Mexico ; they examine for themselves into the archives ; they 
succeed, at a great expense, in inducing some of the officials 
who were engaged in these several offices at the time the trans- 
actions took place, to come to San Francisco with the means 
of identifying the truth of these documents beyond all possible 



21 

doubt — provided they told the truth ; provided they were en- 
titled to be credited. Here, they come. What it cost to bring 
them, your Honors have already heard. Here, they are ex- 
amined. Here, my brother meets them. Here, he propounds 
his four thousand or five thousand questions, more or less. 
Here, days and weeks and months are exhausted in trying to 
establish the fact — -which he suspected to be true — that the 
whole story which they were here to defend is a false and 
fraudulent story. 

We have been represented in Mexico since, if not by a Min- 
ister Plenipotentiary, by a Consul in the City of Mexico, dis- 
posed to obey the orders of his Government, because disobey- 
ing a clear official duty under the Act of Congress — when 
called upon to take testimony — in consequence of an order of 
his Government; and no evidence has been produced during 
the year that has elapsed since these witnesses were examined, 
to satisfy your Honors that any single word of their testimony 
is false, according to the story told by the archives as they 
exist in the City of Mexico. Have these been examined, may 
it please your Honors ? My brother upon the other side writes 
• — as he told you yesterday or the day before — letter after 
letter to the Attorney General and to the assistant counsel in 
Washington, begging them to send to Mexico for the purpose 
of discovering there the fraud. Did not he (the Attorney Gen- 
eral) suppose that there the evidence of the fraud could be 
obtained ? 

Mr. Randolph — I desired to send to Mexico for the pur- 
pose of getting proof of the fraud in a convenient shape to be 
"used in a criminal case. 

Mr. Johnson — I understand that; but still it is a proof of 
the fraud. 

Has it been done ? My brother says — nobody has a right to 
doubt him ; certainly I do not — that, as far as he knows, it has 
not been done. One of two things is true : it has been, or it 
has not ; about that we cannot differ. 

If it has not, are we not entitled to the whole benefit of the 



22 

inference to be drawn from the fact that the United States 
have not ventured to make the inquiry ? 

If it has been done, and the inquiry has resulted in estab- 
lishing the truth of these archives, the non-procluction to your 
Honors of the result of that inquiry tells, as against the United 
States, a story that I should be very unwilling to believe. 

There is in this record, may it please your Honors, a corres- 
pondence between some of the couDsel for these claimants and 
Mr. Attorney General. I am sure the Court will read the whole 
of it, before they proceed to dispose of this case. We knew 
what the charge was here. We had absolute conviction that 
there was not the slightest foundation for it. We had the as- 
surance which the high character of these gentlemen of itself 
gave, strengthened, as it was with reference to ourselves indi- 
vidually, from the intimate personal relations of friendship 
which subsisted between some of them and ourselves ; and we 
invoked, in their behalf, the Government to take such steps as 
would satisfy them, so that these gentlemen might be freed 
from the influence in public opinion that charges coming from 
the United States could not help more or less to create. " We 
propose," says Mr. Attorney General, in his reply to our com- 
munication on the 8th of March, 1859 (and your Honors will 
find that letter at page 2939), "a variety of ways in which the 
Government could convince themselves whether their suspi- 
cious were well or ill founded." Mr. Attorney General says, in 
writing to the President, to whom we were obliged finally to 
make a direct appeal, that the counsel for the claimants pro- 
pose one of five things : 

First. Direct the counsel of the United States to consent that 
the copies of certain papers in the claimant's possession shall 
be admitted in evidence. 

Second. Order them to adopt some measure which will satis- 
fy themselves that these copies are correctly taken. 

Third. Order them to procure other copies of the same 
papers, in such manner and by such agent as they may select. 

Fourth. Solicit of the Mexican Government the original 
papers relating to Castillero's transactions with it concerning 
this grant; or, 

Fifth. Ask of Mexico a copy of all such papers, authenti- 
cated by the great seal of the Kepublic. 



23 

One of the modes that we proposed was — not believing it 
possible that that could be rejected — to select any gentlemen of 
intelligence and character that they pleased ; let them go as a 
Commission to Mexico and examine the archives ; and let them 
come down to San Francisco and testify here before the Court 
the result of the search. Let the Minister do it, who was then 
at the City of Mexico, we said. If, from his official station, he 
was unable to accomplish it, send out the Commission ! Make 
the selection of Commissioners yourselves ! If attended by an 
extraordinary expense, which the Executive of the United States 
would not permit them to incur, our clients will pay the ex- 
pense ! 

We offered it with no offensive view. We believed that it 
was barely possible that Mr. Attorney General, or the Presi- 
dent of the United States, might be under the impression that 
there was no fund in the Treasury to bear the expenditure 
which would be incurred by such a Commission. We said, 
therefore, send it out, and our clients will incur the whole ex- 
penditure ; substantially, we will treat the Commissioners as 
we had to treat those Mexican witnesses— we will carry them 
to Mexico in the best possible way ; we will see them taken 
care of in Mexico in the best possible mode ; we will bring 
them to California ; we will pay their expenses in the most 
liberal manner ; we will pay them for their time. If it costs 
$200,000, we are willing to give it to American gentlemen, 
selected by the Government for the purpose of discovering into 
the truth of this alleged charge of fraud upon the part of the 
Government. 

We said, in the conclusion of one of the letters : " And here 
we beg to be permitted to say, there is no form in which our 
Government can request or exact from that of Mexico the 
assurance of the latter as to the genuineness of these papers, 
which we will not cheerfully acquiesce in." That is as far back 
as the 19th of November, 1858. It was received by us in 
Washington on or about the 17th of December, 1858 ; and it 
was communicated by us to the authorities at Washington on 
that day — the letter communicating it being signed by Mr. 
Benjamin and myself, and by J. J. Crittenden and John A. 
Eockwell (page 2929). That is to the Secretary of State. 



24 

My friend, the Secretary of State, got it, but he did not an- 
swer it for a good while. I suppose he put it in the hands of 
the Attorney General, and he could not answer it. But he does 
answer that proposition, and the several additional propositions 
that were made. And how does he answer them, may it please 
your Honors? Page 2939 : 

I. The counsel of the United States cannot possibly consent 
to the admission of evidence which they believe to be corrupt 
and false. 

That is before it is obtained ! 

In this case they do believe that the copies of the papers 
produced by the claimant before the Land Commissioners, and 
in the Circuit Court, are not satisfactorily authenticated — 

So that your Honors could not receive them as testimony at 
all! 

— and they further believe that the originals are themselves 
fraudulent fabrications. Of course we make it a point of con- 
science and principle to oppose evidence of that kind. 

That is not all. 

II. The counsel of the United States (not my brother, be- 
cause he says he has not done it ; not the former District At- 
torney, for if he had done it, the testimony would have been 
here ; not the present District Attorney, for he has not had 
time to do it, and he won't have much time to do it) — the 
counsel of the United States have adopted (what I emphasize, 
may it please your Honors, is italicized in the letter, and the 
letter is printed from an official cop}^ of the letter in the De- 
partment of State ; so the italics are the italics of the Attorney 
General, when he handed the letter to the Department of State) — 
the counsel of the United States have adopted very careful 
measures to satisfy themselves concerning these copies, as well 
as the originals from which they purport to be taken. 

What "careful measures" did they take? 

Me. Randolph — Inspected the face of the papers, I suppose. 

Mr. Johnson — By the face of the papers you could not well 



25 

tell, I suppose. You might suspect, might do as my brother 
does — indulge in suspicion throughout. 

What are Ave to infer from this, may it please your Honors ? 
What we wanted was to ascertain what the archives in Mexico 
disclose ? The evidence of fraud was there, if there was fraud. 
The papers fabricated were there, if there was fabrication. 
There, we asked them to go. There, they virtually say they 
will not go again, for they have been there already. They 
have examined the archives already. The result of the inquiry 
was, to satisfy them that the originals, there on file, are fraud- 
ulent. Give us — 

Mr. Randolph — (interrupting). I do not understand that 
the Attorney General makes any such assertion. 

Mr. Johnson — Of course he does not say it. But he has 
" satisfied " himself and " taken very careful measures " to do 
it. No man in his senses could say that measures necessary to 
satisfy the mind on a subject of that sort, are not to be taken 
in the City of Mexico. He is a high official person — the At- 
torney General of the United States ! Every word that he says, 
then, must be true ! He has " taken careful measures "! Why 
did not he let your Honors see what the measures were? Who 
is the agent in Mexico that made the search ? Was it the Con- 
sul ? Who is the agent sent there for the purpose of making 
the search ? Was it the former District Attorney, Mr. Inge ? 
Let us know what was done. Your Honors are asked to de- 
nounce these papers as fraudulent, and to brand the parties 
concerned with infamy, on the ex parte charge of Mr. Attorney 
General, and the counsel for the United States ; and here 
we are told by the Attorney General himself, that he has 
adopted measures which have "satisfied" him that the charge 
is well founded ; yet he does not dare to lay before the Court 
what the measures were ! 

But that is not all. He goes on further to say: 

III. You are requested by those gentlemen (Crittenden, 
Benjamin, Rockwell, and myself) to get other copies of the 
same papers. In answer to this, I have nothing to say of the 



26 

unprecedented and singular attitude which, the Government 
would take in sending its own counsel to hunt up the evidence 
of a hostile claim in favor of Mexican citizens at the seat of the 
Mexican Government. 

That is to say, may it please your Honors, to make the 
treaty effectual ; to preserve the pledged word of the country ; 
to keep her in the estimation of the nations of the world free 
from reproach ; to guard her against claiming for herself 
property belonging to citizens deriving title from Mexico, 
when the question is presented for judicial determination — 
that the property becomes ours unless the claimant can succeed 
in establishing that it is his. We will not go to Mexico, or 
suffer anybody else to go to Mexico, for the purpose of search- 
ing where alone a search can be made successfully into the 
fact — because that would be to aid " a hostile claim," as against 
the United States ! " A hostile claim !" 

The Supreme Court thought differently, in the opinion I 
read you just now — the decision of Mr. Justice Campbell in 
the Fossatt case. Of the very act which Mr. Attorney General 
announces is u unprecedented," Mr. Justice Campbell, speaking 
for the Supreme Court of the United States, says: " It is their 
duty to solicit exact information to direct our Executive Govern- 
ment to comply with the obligation imposed upon them as a 
great nation by which they have acknowledged their obligation 
to recognize as valid every authentic title." (Page 451, 21st 
vol. Howard.) 

Well, that is not all, may it please your Honors. Mr. 
Attorney General continues : 

But there is another reason which cannot be got over. 

We waut to save the property for ourselves ; and that is 
reason enough ! But if that is not sufficient, there is another 
reason which cannot be successfully met. We will therefore 
let the first reason pass. 

In the language of Mr. Attorney General, " Let that pass!" 

But there is another reason which cannot be got over. It is 
not of the copies alone that we complain. The originals, or 
some of them at least, may be among the Mexican archives ; 



27 

and what we assert is, that they were not honestly placed there 
by the Mexican officers. 

All of them may be, or if not all, some of them may be there ; 
but " they were not placed there honestly by the Mexican 
officers !" They were placed there by the Mexican officers ; 
but " not honestly !" How does he know they were there ? 
all, or one, or any less than all ? Because he has made the 
inquiry. He has had the search conducted by somebody in 
whom the Government has confidence ! It is not Mr. Frederick 
Billings ; no Mexican lawyer employed by Mr. Billings ; no 
Eustace Barron. " In some way satisfactory to ourselves, we 
have made such a careful search that we are rather inclined to 
believe that the originals of all the papers presented before the 
Court establishing the title to be confirmed, are in the Mexican 
archives ; but we won't let them be produced. They shall 
not be authenticated; they shall not be used as evidence if 
they are not authenticated, so as to make them legal evidence 
by force of the authentication — because I, Mr. Attorney Gen- 
eral, say, in the face of the world, that they were placed there 
by the Mexican officials dishonestly." 

And he gives another reason. His sense of morality is not 
as yet exhausted. 

IV. The next proposition is, that you solicit the Mexican 
Government to furnish original papers relating to the claim of 
Castillero. I concede it to be true, as a rule of public law, 
that a document which belongs to the Mexican archives, cannot 
properly reach our judicial tribunals, so as to be noticed by 
them, except through that Department of our Government 
which manages its foreign affairs. But this being true, why 
does not the Republic of Mexico offer the document in ques- 
tion to the Department of State ? Why should we take the 
initiative in reference to the claim of Mexican citizens against 
ourselves ? Or why should we expose the truth, — " (which he 
says was falsehood and forgery in the fabrication of the papers)" 
— to the danger of being perverted by the diplomatic maneuvers 
which might be resorted to by our opponents ? 

Is it not evident, may it please your Honors, that the Attor- 
ney General thought that the United States, in a case of this 



28 

description, was to appear in the courts as a " contentious liti- 
gant " ? 

My opinion is, that the Government of the United States 
should wait until that of Mexico shall make a voluntary tender 
of the papers which support this title. 

"What is he going to do with them after he gets them ? Why, 
that depends on what they may turn out to be. Is that it ? If 
they will defeat the hostile claim set up by Mexican citizens, 
as against the United States, we will let them be forthcoming ; 
" if not, we will then decide what we will do with them." 

My opinion is, that the Government of the United States 
should wait until that of Mexico shall make a voluntary tender 
of the papers which support this title, and then examine into 
their character with great care, holding Mexico to the full 
measure of the responsibility she will incur by any aid she 
may willfully give in the support of a false claim against the 
United States. 

He assumes the fraud and falsehood of the claim, and states 
here by way of threat : " don't you send us these original pa- 
pers ! It is not our duty to ask for them. It is your duty, if 
there is any duty on the subject at all, to send them. But take 
care how you send them ; because, if you do it without being 
asked, and it establishes the validity of what we say is a false 
claim, we will hold you to a rigid responsibility, and take 
another portion of Mexico to make up, by way of indemnity, 
for this past transaction." 

But that is not all. He says he won't ask Mexico to attach 
the Great Seal, because, if there is any law preventing the use 
of the Great Seal for any such purpose, it exists by virtue only 
of a Presidential decree, and that decree may be altered at the 
will of the Executive. Then he says, after dropping the ques- 
tion of fraud — and I ask your Honor's particular attention to 
this — (page 2941-42 of Transcript) : 

" The Mexican Government, after strict inquiry and exami- 
nation, having in the most solemn manner, and under the most 
impressive circumstances, affirmed to the Government of the 



29 

United States, that no grant whatever of lands in the territory 
of California, had been made after the 13th of May, 1846, with 
what face can that Government now assert the contrary ? with 
what regard to common propriety can the United States ask 
the Republic of Mexico to do this thing ; to violate her own 
honor, to falsify her own declaration, and to break her solemn 
pledge after procuring an advantageous treaty of peace upon 
the faith of it ? If it be said that the declaration of the Mexi- 
can Commissioners was a mistake, and that a private person 
should not be compelled to suffer by it, the answer is very 
plain. He should seek redress from the nation which inflicted 
the injury. Let him look to his own Government, which 
pledged its honor that no such grant existed, and not to the 
United States, who took the pledge as true. Castillero, like 
every Mexican citizen, was bound by the affirmation which his 
Government made." 

The Supreme Court tells us, that by the law of nations, by 
the principles now universally admitted as just among the civil- 
ized nations of the world, no nation can, in ceding its territory, 
dispose of the private property acquired by valid title from it 
before the cession ; and your Honor, the District Judge, in an 
opinion of the ability of which I forbear to speak in the pres- 
ence in which I stand, has stated that it is not in the power of 
the Government of Mexico to deprive an individual proprietor,, 
whether a Mexican or somebody else, of land held under Mex- 
ico, antecedent to the actual cession, by any declaration which 
they may have made ; and that with reference to the particular 
declaration relied upon, it is entitled to no consideration what- 
ever, because that article of the treaty — inserted in the original 
treaty in order to carry out the object of that declaration — was 
stricken out by the Senate. 

Hear how his Honor Judge Hoffman disposes of that ob- 
jection in this case. I read from the decision of the Court in 
the United States vs. Palmer et al. : 

On the whole, we are of opinion that the right to grant her 
public domain in California, continued until the conquest of the 
country by the United States. 

The declaration of war did not take from her the power to 
grant. 



30 

It is further urged, on the part of the United States, that 
grants made after the 13th of May, are not protected by the 
treaty of peace, because such was not the intention of the par- 
ties. That the Mexican Commissioners who negotiated the 
peace, and who represented the claimants as well as the Mex- 
ican Government, solemnly, and after special inquiry, declared 
that none such existed. 

That the treaty was negotiated on the faith of this declara- 
tion. 

It is admitted that such a declaration was made and em- 
bodied in the projet of the treaty submitted to the Senate. 

Had this declaration been contained in the treaty, as adopted 
and ratified, it might very possibly have been regarded as a cov- 
enant or stipulation that no such grants should be deemed valid 
by the United States. 

But the clause containing it was struck out by the Senate, 
not by the general vote which struck out the whole of the 
10th article of which this declaration formed a part, but by a 
distinct vote upon the question whether this particular clause 
should stand as a part of the treaty. The Court cannot assume, 
therefore, that the treaty was assented to by the United States 
on the faith of this declaration by Mexico, else why strike it 
out? 

It may not unreasonably be supposed that the Senate re- 
fused to allow the declaration to remain. 

Why, your Honor speaks from the inspiration of that Heav- 
enly spirit to which my brother on the other side at the be- 
ginning of his argument referred. 

It may not unreasonably be supposed that the Senate re- 
fused to allow the declaration to remain, because they were 
willing that grants made after the 18th of May, if any such 
there were, should be submitted to the Courts, and rejected or 
confirmed, as might be just. But, assuming that the treaty 
was concluded on the faith of this declaration, the rights of an 
individual to his property cannot be affected by it. 

So that, whether true or false, whether the declaration being 
made was a motive to the treaty — if it turned out in point of 
fact, that grants were made subsequent to the 13th of May, 
1846, by which there became vested, either by actual or in- 
choate title, property in the lands of Mexico in a Mexican citi- 
zen, or in anybody else — the treaty could have no operation to 



31 

divest such rights ; it being the universal principle of inter- 
national law in this age of the world, that the cession of terri- 
tory from one foreign Government to another, cedes only that 
which the foreign Government has at the time of the cession. 
No matter what general declarations were made. If erroneous 
and false in point of fact, the rights of the individual are still 
protected ; and the Government deceived seeks an indemnity 
from the Government deceiving. 

The Court here took a recess. 



ON RE-ASSEMBLING, 

Mr. Eandolph said — If your Honors please, Mr. Johnson 
is kind enough to give me a few minutes of his time, on a 
point entirely personal. I acknowledge myself very happy to 
receive instruction from a gentleman of his eminence and 
experience, whether given in a mode of advice or reproof. 

Insomuch as concerned Mr. Benjamin, on Saturday last, I 
supposed it was exceedingly manifest how I had labored for 
the purpose of expressing how much I respected him person- 
ally and professionally, and at the same time to express how 
little I respected or regarded so much of his argument as I felt 
myself called upon to reply to. 

I am sure that Mr. Johnson himself does not entertain a 
higher regard for Mr. Benjamin personally than I do ; and that 
he cannot entertain so high a respect for him professionally, 
because I am willing to admit him as a superior — which I 
suppose he would not. 

As to this simple matter of criticism of rhetoric, I think it 
is unfitly qualified when it is called " unkind;" because the 
thing is itself of a nature concerning which unkindness could 
not be attached to the words used. I regarded that portion of 
the matter as one of those lighter passages, which if unhap- 
pily executed, at any rate would carry with it no semblauce of 
indignation, or malignity, or malice, or disrespect. 



32 

Me. Benjamin — If your Honors please, I was not aware 
that I was on trial in the Court. Being so, I suppose I ought 
to say a word ; to express the entire satisfaction with which I 
regard what has been said so justly by both gentlemen in my 
praise, and only to complain that they have not gone quite far 
enough. 

Mr. Johnson — Some gentlemen are hard to satisfy, may it 
please your Honors. I can go no farther. I have gone far 
enough ; as far as my conscience will permit me. 

It is due to myself, may it please your Honors, to speak seri- 
ously, to say in the presence of my brother on the other side, 
and in the hearing of the Bench, that I have said nothing in a 
spirit of unkindness to him. He has been uniformly so cour- 
teous and polite to me, that it would not be in my nature to 
utter a word of unkindness to him. In this room, and socially, 
I have had the pleasure of his company, and have enjoyed it, 
I am sure, as much as any friend he has. If, therefore, in the 
discussion and argument hereafter, in the excitement of the 
moment, I should drop an expression or utter language that 
may seem harsh, I hope he may understand it as explained 
in advance. 

I was commenting, may it please your Honors, at the close 
of the first part of the session of the Court, upon the persever- 
ing determination of the Government not to permit the claim- 
ants in this case to have the benefit of the Mexican archives. 
They did not ask the Government to receive those archives as 
conclusive upon the questions at issue between ourselves and 
the Government. We knew, and were perfectly willing if it 
depended upon any assent of ours, that it would be in the 
power of the Government to deny the authenticity of those 
documents, the integrity of the archives, the honesty of the offi- 
cers by whom they were preserved. But, in common with my 
colleagues, I think it especially unjust to us, and insulting to the 
Government of Mexico, to doubt the integrity of her archives, 
after what had occurred as between the two Governments, and 
what had from time to time been said in relation to the archives, 
by your Honors, or his Honor to whom I particularly address 



33 

myself — the District Judge — before whom these questions have 
been, of course, presented, as well as the Supreme Court of the 
United States. 

In the several decisions pronounced by his Honor, in the re- 
view of those decisions pronounced by the Supreme Court of 
the United States, in the various cases that have found their 
way before that tribunal — the evidence furnished by the ar- 
chives has been considered conclusive practically, the one way 
or the other, if uncontradicted. A claim presented, not ap- 
pearing in the Mexican archives, was, because of that fact, con- 
sidered to be almost conclusively defeated. A claim presented, 
and opposed by the Government upon the ground of fraud, 
was considered to be almost conclusively established by the 
fact that the title to the claim was to be found in the archives. 
And the United States, whose officers could not really have 
supposed, had no right to suppose, and could not have supposed 
that the archives of Mexico were fraudulently made up, for in 
various cases, and particularly in one which they were very 
anxious to establish as fraudulent, and to defeat because fraudu- 
lent, availing themselves of the comity due by Mexico to them- 
selves, they have asked through the Minister of the United 
States, for the time being, in the City of Mexico, the privilege 
of having examined the archives for the purpose of using it on 
the part of the United States to defeat the particular claim to 
which I now advert. I mean the claim of Limantour. And 
his Honor Mr. Justice Hoffman, in the very able opinion pro- 
nounced by him in that case, in his very clear and satisfactory 
presentation of all the evidence by which he was induced to 
come to the conclusion that the claim was fraudulent — a con- 
clusion to which he leads the mind of his reader by a process of 
reasoning amounting almost to demonstration — relies upon the 
absence of the title in the archives, as conclusive evidence against 
the validity of the claim. And how did the evidence furnished 
by those archives, get here, may it please your Honors? I read 
from page 45 of the pamphlet copy of the opinion which his 
Honor was kind enough to give me a few days ago, in which 
he says : 

On the Limantour and Castanares petitions the impression of 
3 



34 

the type is not shown upon the last page of the paper. On all 
the other papers this impression is visible on all the pages of 
each sheet, indicating that the sheet must have been folded 
when placed under the press. These coincidences, though 
affording of themselves no conclusive evidence of the spuri- 
ousness of these titles, are yet significant as corroborating and 
confirming our conclusions drawn from other testimony, and 
as showing that every circumstance connected with them, even 
the most minute, points unmistakably in the same direction. 

Such is the result of the rigorous and thorough examination 
which has been made of the archives of this Department. 

That reference is to the archives here in California. The 
opinion then continues ; and it is to this portion that I invite 
the attention of the Court : 

It is shown that the archives at the Citj of Mexico are 
equally silent as to the alleged concessions or confirmations in 
these cases. It appears, that on the 4th of March, 1854, Mr. 
Cripps, the American Charge d' Affaires at that city, addressed 
an official note to Bonilla, the Mexican Minister of Exterior 
Eelations, requesting to be informed whether any record or 
evidence of titles granted to Jose Y. Limantour existed in the 
archives of Mexico. To this note Bonilla replies by inclosing 
to Mr. Cripps communications received by himself from the 
Heads of the Departments, to whom he had applied for the 
information required. 

The same Departments to which we now refer; the same 
Heads of Departments on which we now ask your Honors to 
rely. 

The opinion then proceeds to give the substance of the replies 
of each one of these Heads of Departments, in which each one 
states that the archives of his department have been examined, 
and that they contain no evidence whatever of the alleged 
grants to Limantour ! 

Your Honor then goes on to say : 

The communication from the Minister of War and Marine, 
and from that of the General and Public Archives of the Na- 
tion, are to the same effect; and in the communication of the 
Minister of Foreign Affairs to Mr. Cripps, of the 6th December, 
1855, he informs the latter that the three offices, of Fomento, of 
War, and of the General Archives, are the only ones where 



35 

the evidences of the alleged grants could be found in the City 
of Mexico. He therefore refers Mr. Cripps to the archives of 
the public offices of California. How unproductive the search 
in these latter has been, we have already seen. 

No doubt there, when it served the purposes of the United 
States, of the integrit\ r of those archives ? Xo intimation there 
that it was possible that the heads of the several departments 
in which these archives were found, were capable of "forgery, 
fabrication, fraud, falsehood, antedating I" 

On the contrary, the United States reiving, as your Honor 
justly relied, on the integrity of these very archives, was, by 
means of these very archives, decided to own the lands covered 
by the claim of Limantour. 

Let us, then, have justice. Do not appeal to Mexico to save 
the United States from grants alleged to have been fraudulently 
concocted, by giving the United States the benefit of the evi- 
dence of the fraud furnished bv the archives; and when a claim- 
ant in another case challenges the production of the same evi- 
dence, deny it upon the ground that " We say fraud existed, 
and we will not permit you to say the contrary by proof which 
in another case we not only relied upon, but insisted was con- 
clusive." 

Wow, what are those archives, may it please your Honors ? 
"Why, there are five of them ; five of them in which is to be 
found evidence for or against the validity of the particular titles 
"which we are now examining : 

First The espediente from the Junta cle Fomento ; now called 
the Administration del Fundo. 

Second. The espediente from the Ministry of Justice ; now in 
the Ministry of Relations. 

Third. From the Ministry of Relations, Government and 
Police ; now in the Ministry of Gobernacion. 

Fourth. Another from the Junta Facultativa of the National 
College of Mining, which bears the same name at present. 

Fifth. Another from the archives of the Direction of said Col- 
lege ; bearing the same designation at present. 

Some of these Superintendents of the Archives are the same 
if not all the identical men, who superintended the ar- 



men, 



36 

chives in which the evidence referred to in Limantour's case 
were kept. 

Now what has to be done in order to make a forgery in any- 
particular title effective ? Corrupt one ? No. Corrupt the 
officers in five departments. You might go to Washington 
— and I state it only as a bare possibility, not any time appli- 
cable to the heads of the several Departments — and it is barely 
possible under the state of things which has been existing for 
the last fifteen or twenty years, a change of subordinate officers 
being frequently made at the demand of active and noisy poli- 
ticians during the immediately preceding Presidential canvass, 
that some dishonest man in some subordinate capacity might 
be found in some of the departments who might be open to 
corruption. 

But, who has ever heard of any corruption in the head of a 
department ? Who has ever heard of a bill of impeachment 
being shown up in Congress to secure the trial before the 
Senate of any of our Cabinet officers, suspected even on reas- 
onable grounds of having violated the oath of their office and 
dishonored the Government and their own name? 

Who has ever heard of any fraud being consummated against 
the United States through the instrumentality of corruption in 
any of our several Departments. We are as good, thank God, 
but we are no better than they are. The time has not yet 
come, and I trust in God it never will come, not only when 
any high officer of the Government has been corrupted, but 
when any man has ventured to approach such a personage 
with an}^ offer to corrupt him. I disparage them not by com- 
paring them with the officials who presided over the several 
Departments in Mexico, to which we have alluded. Eead the 
testimony of these witnesses upon which my friend (Randolph) 
on the other side has commenced. Read the searching exam- 
ination through which he conducted them. See the ingenuity 
he displayed. Then answer for yourselves as to the results. 

Great as brother Randolph's ingenuity is, versed as he was 
in the necessities of the particular case, anxious as he was to 
try the mental and moral calibre of these witnesses, we will 
submit to your Honors if it is not evident that, high as brother 



37 

Randolph's mental and moral qualities are — and nobody esti- 
mates them higher than I do — he found his match in both of 
these characteristics in the Mexican witnesses. Go to the testi- 
mony of Mr. Bassoco. See who got the best of it ! Look to 
his hypothetical questions, intended to dive into the mind of 
the witnesses. Compare the answer with the question. The 
"old man" — brother Eandolph calls him old — he is younger 
than I am, and I am not so very old ; though I'm quite old 
enough — he answers very kindly to one of my brother's in- 
quiries, one of his hypothetical questions, and he answered in 
Spanish. I did not know exactly what the phrase meant. I 
asked, what does it mean? " Quien sabe" was the reply; 
meaning, " who knows." " That is a foolish question." 

Mr. Randolph — That's the same phrase you translated 
"Queen of Sheba," this morning. 

Mr. Johnson — It admits of a great many translations ; and 
amongst others my brother will recollect that it means, " That's 
a foolish question." I do not myself mean to apply the term 
to any questions my brother Randolph may ask, but really I 
do think, considering the relation in which the question was 
put, that it was not altogether pertinent. 

But, may it please your Honors, what right has any gentle- 
man in a Court of Justice, and, above all, an officer of the 
Government of the United States, pro hcec vice — what right has 
he to charge witnesses with perjury and falsehood, when there 
is no evidence upon the question of gentlemanly character, 
when there is nothing in the evidence that does not show that, 
to the best of their knowledge, they are telling the truth. 

But there is said to be in their evidence enough to satisfy 
us that they are not telling the truth. What is that? Why, 
one man, Lanzas, did not know who his predecessor was, and 
who his successor is. Well, there are a good many statesmen 
in the United States who would be puzzled to give the like 
information for themselves or for others. I think we can tell 
who the successor of one of our high officials will be — just at 
this speaking I think we can tell that. 



38 

Well, what is there of intrinsic evidence to be found in the 
record from the examination of these witnesses, that is calcu- 
lated to satisfy your Honors that they are not telling the truth? 
Why, it is because they just repeated the lessons taught them 
before they came on to California ! They knew exactly what 
was wanted. The case before they came here had got up to a 
certain point. It would not do. We were afraid, at least — so 
it is represented — that it would not do. We had what would 
have satisfied most minds that this title was perfectly fair. We 
had what we supposed ought to be received, so far as the Gov- 
ernment was concerned, as evidence of the integrity of this 
title. We had the papers all authenticated by the officials of 
Mexico in the only way in which they could be authenticated ; 
but the Government would not let it come in. Mr. Attorney 
General says: "I make it, of course, a matter of conscience 
and of principle not to let any evidence in that is going to hurt 
the United States." Then, what does my brother say? "Go 
to the City of Mexico, bring your nine witnesses here, and pay 
them two hundred thousand dollars for coming." We send to 
Mexico. William E. Barron went to Mexico. William E. 
Barron, "the simpleton," went to Mexico to get this testimony. 
He prepared it all when he got there, brought it up already 
made when he returned from there. 

How did he go ? My brother here upon my right (of course), 
who the counsel for the United States has not only not im- 
peached, but on the uttering of a remark by me a few days ago 
intimated that the possibility of brother Eandolph's involving 
him in the evil suppositions — from the instinct of his nature he 
said: "No; we make no charge against Mr. Billings ;" — he 
accompanied Mr. Barron. He (Mr. Billings) is acknowledged 
to be incapable of falsehood or forgery. Not so, brother Bil- 
lings, the thing was done, and you did it ! You did it, if it 
was done at all. I have no idea that you shall escape at the 
cost of William E. Barron. He may be bad enough, but you 
are a great deal worse. You are no "simpleton." 

I speak of what is in the case, may it phase your Honors ; 
I am not going out of the record. 

William E. Barron goes to Mexico, taking along with him as 



39 

counsel, Mr. Frederick Billings. They arrive there in the 
month of January ; they stay there until the month of April. 
He (Billings) searched the archives. William E. Barron 
had no more to do with it than I had. He had too much sense 
— " simpleton" as he may be and is called by the special counsel 
— to interfere with it. He had with him a friend and counsellor 
who was competent to the work. He gets him there at con- 
siderable expense, no doubt, for he did not go without being 
paid, if he understands his profession — and from all that I can 
hear, he does — in that particular at least ! He stays there 
three months. He worked like a mule. If there were any 
lessons taught to the Mexican witnesses, here is the master 
(patting Billings on the back). If there was any evidence pre- 
pared for the Mexican witnesses, here is the man who wrote it. 
If anybody corrupted the Mexican Minister, here is the man 
that in Mexico did it or advised it to be done ! 

Mr. Eandolph — I do not agree with you in that. 

Mr. Johnson — I know you do not ; but when you say that 
the fact is not so, we say that the charge is not so, and you thus 
give up the charge. I understand that you do not impute any 
such things to Mr. Billings, but in thus imputing it to no one, 
you should be logically and kindly consistent by saying that 
nobody did it ; for, from the nature of the condition in which 
William E. Barron and Mr. Billings stood in the City of Mex- 
ico, it is impossible, if this was done at all by anybody, that 
it was not done by Frederick Billings — and nobody supposes 
that he did not. He would forfeit his life, if that were possi- 
ble, fifty thousand times, rather than dishonor the name he 
has won for himself by so base an act of corruption and of 
treachery in an officer of this Court. It was not done. If done, 
brother Billings did it. But it was not done at all. It could 
not have been done, because, if contemplated, he was there to 
perform it. 

Then, what was obtained there was all honestly obtained. 

Mr. Eandolph — We had copies of the papers before sent 
from there. We had already proof of their being there. 



40 

Mr. Johnson. Copies ? I am speaking now of archives, 
originals. You said the other day that we had " copies" in 
advance of their inquiry. You said that they would not do. 

And, in addition to the proof that he got from Mexico, con- 
firming the evidence that was here, he brought farther proof 
that was not here ; he brought the archived entries of the actes. 

I beg his (Billings) pardon for, even argumentatively, suppos- 
ing that it was possible for him to have had anything to do 
with a transaction as infamous as this would have been, if it 
had occurred. 

Then, what is the inference ? 

Suppose Limantour had said, when the United States received 
the evidence furnished by a certificate showing that his titles 
were not spread upon the Mexican archives, that the certifi- 
cate was fraudulently obtained, forged, manufactured by the 
agent of the United States, the Charge aV Affairs, or at his insti- 
gation ? How indignant would everybody have been at such 
a charge ! And that indignation, then, however high might 
be in point of fact the character of the representative of the 
United States at that time in Mexico, at whose instance these 
certificates were obtained, will be infinitely greater when you 
know who was the gentleman by whom this evidence was ob- 
tained, from a knowledge of him for years, as an officer of this 
Court, as a citizen, and as a man, and know that it is impos- 
sible that such falsehood could have been manufactured in the 
City of Mexico, and that witnesses could have been induced to 
come here for the purpose of making good the falsehood, you 
will be obliged to conclude that there was no falsehood about 
it. What the archives are said to prove the archives do prove. 

Mr. Billings examined them. He is Spanish scholar enough 
not to be cheated. Looking not for falsehood, but for truth, 
carrying out the design that my brother (Benjamin), myself, and 
Mr. Crittenden, and Mr. Kockwell, had in making the several 
offers to the Government. We said : for Heaven's sake, in the 
name of justice and of mercy to these men, do let the archives 
themselves tell their honest story. If it shall turn out that 
they involve Castillero in the charge of fraud, which you im- 
pute to him or involve us, let the truth, whatever it may be, 
come out. 



41 

Mr. Billings was searching for the truth, with no fear, with 
no alarm, with no apprehension that his friend and his client 
would be involved injuriously by the search ; but with that 
perfect confidence which he had from what he had seen before, 
that there was no ground whatever for the charge ; he con- 
ducted the examination himself throughout ; brings the wit- 
nesses here, examines the witnesses here, having had an oppor- 
tunity of fully knowing the witnesses in Mexico ; and yet, 
may it please your Honors, although he is not charged — if the 
charge is true, it especially involves him ; he is practically 
charged with converting some Scotchman into Castillo Lanzas, 
and passing him off here as the former Secretary of Foreign 
Eelations. His client is charged with it ; but he stood by and 
saw it done ! He must have known that Castillo Lanzas was 
either the Lanzas, or was an impostor. 

My brother on the other side is not satisfied himself that he 
was Castillo Lanzas. He gave us an account the other day of 
his having tried to get at the fact through the instrumentality 
of a photograph. Lanzas was taken — photographically — and 
these vile photographs, as some of us know to our cost, always 
represent a man just as he is. Your Honors, perhaps, have 
found that out. I dread one of them a great^deal more than I 
do a Mexican official ! 

Well, that is sent on. He sent it. It was a true likeness, 
you know. It was Lanzas who was photographed, whoever 
he was. It goes on to the District Attorney of the United 
States, at Washington, and he has not been able to get an an- 
swer as to who Lanzas was. But still he (Randolph) insists 
upon it that he may be, after all, only a school-master and a 
Scotchman. 

Mr. Randolph (interrupting) — He may be a butler. 

Mr. Johnson — Yes, anybody but Lanzas. It is not in the 
scope of probability that he is Lanzas ! 

Mr. Randolph— That is not what I said. 

Mr. Johnson — Then it is possible that he is Lanzas ? If 



42 

" possible" then, I think that the Court will come to the con- 
clusion that it was Lanzas himself! 

These gentlemen being here, what right has my brother on 
the other side to charge them all with being perjurers. Their 
testimony is not called in doubt by anything on the face of the 
record. The question is so plain, as a matter of evidence, that 
it would be doing injustice to the Court to take up any more 
time in discussing it. 

Then you are to believe that these men told the truth. 

Now, start with that idea, if your Honors please. Telling 
the truth, meaning to tell the truth, could they have been hon- 
estly mistaken ? Why, certainly not. What are the facts that 
they testify to ? The condition of the archives. They had 
just seen them. They had taken notes in order to enable them 
to testify. They were perfectly conversant with the points to 
which they did testify. 

Mistake was impossible ; perjury was out of the question. 
All that is left, is what we want — the truth. 

Assuming as true what they have testified to be true, pro- 
vided the papers found in the archives constitute the title of 
the mine and the two leagues, the case of the Government is at 
an end. It is not a hostile claim made up by force of false title 
papers ; it is an honest claim which the United States, under 
the circumstances in which the case stands now, should almost 
blush to oppose. 

The law upon the matter presents quite a distinct inquiry. 

One of my colleagues has prepared for me a reference to the 
record, in which your Honors will find the pages given in which 
each one of these archives is proved, and the manner by which 
the proof was made. In some instances, they prove each other. 

The particular title paper which appears in one bureau, ap- 
pears in the same form with some additional matter in another. 
The short minutes of these several bureaus, which appear in 
some one bureau, are to be found in another. The witnesses 
speak of the fact of their being there. 

If it were possible, as the case stands, to doubt the integrity 
of that proof, how would it be possible judicially to doubt it 
in a case in which the United States is a party, with every 



43 

means to procure the evidence to establish the fraud, and not 
only not taking it, as we are told, but not venturing to take it 
upon the idle and unjust pretense that the Mexican officials 
are dishonest ! 

The grant for two leagues is dated on the 23d of May, 1846. 
I have compared, with the aid of Mr. Hopkins, the signature 
to that grant, which is the one we produce, and which we say 
is Castillo Lanzas' signature, with a signature to a grant made 
in the preceding month of March, in a communication. 

Mr. Randolph — Do you propose to put Mr. Hopkins on the 
stand ? 

Mr. Johnson — No ; I propose to put the hook on the stand, 
and to let the book speak for itself. 

Mr. Hopkins has told us what he thought your Honors will 
see by inspecting the archives, that the signatures are identical. 
And you will see by looking at the same book of archives, that 
the paper which was nsed in 1846, on the 23d of May, is pre- 
cisely the same paper that was used in January, 1846, up to 
that time, and differs from the paper which was used in 1845. 

Mr. Randolph — (with Mr. Johnson's permission) : It seems 
to me that this is some new evidence, which the gentlemen, I 
suppose, intend to rely upon, of which I have neither had no- 
tice nor opportunity for cross-examination, nor privilege to do 
or say anything at all in regard to. The instant Mr. Hopkins 
produced these books I availed myself of the moment to object 
to them ; or to anything of that sort being introduced in this 
stage of the case. I am at a loss to know by what means they 
expect to establish the propositions they are now advancing by 
anything legitimately in the record of this case. I suppose 
they could only be established by the examination of Mr. Hop- 
kins. 

Mr. Johnson — I don't propose to examine Mr. Hopkins ; 
but your Honors will see, by looking at the record, that my 
friend (Mr. Randolph) himself examined Castillo Lanzas as to 
these very archives. 



44 

Me. Randolph — If they are in the record I do not object to 
your using them. 

Me. Johnson — Of course the originals are not in the record, 
but the signatures are copied. You cannot tell the character 
of a signature by a printed record. The originals in the records 
are extracts, not traced copies. My brother Randolph exam- 
ined Lanzas in relation to them, and therefore made them evi- 
dence so far that your Honors are bound to go into the exami- 
nation of the originals. 

Me. Randolph — The record must speak for itself on these 
points, and so far as they are concerned the Court will not de- 
part from its rule of strictly confining its examination to the 
record. 

Me. Johnson — Then the proposition, as I understand it, is 
that your Honors are not at liberty to look at the papers in the 
archives. I am taking the ground, that if you have any doubt 
about these signatures, you have the right to go to the archives 
and compare signatures. I do not want you to consult the 
archives unless you are in doubt ; but if you doubt the integ- 
rity of the signature, compare it with the archives in the pos- 
session of the United States, and compare the paper used at 
this very time when the particular grant which we now offer in 
evidence was made, with that used in 1846. 

And is there anything but the archives, may it please your 
Honors ? Why, if we had no other proof than was furnished 
by the report of Lafragua, to which you have had a reference, 
it would be sufficient for this purpose. 

Me. Justice Hoffman — Do you mean to say that we can- 
not examine any original papers (addressing Mr. Randolph) ? 

Me. Randolph — I mean to say, that I do not know what 
paper they intend to use which is not in this record. I do not 
know that the paper produced now will agree with the paper 
produced in the record. Nobody has more confidence in Mr. 
Hopkins than I have. But what I now object to is, the bring- 
ing in of matter as evidence now which might have been 
brought out when he was on the stand. 



45 

Mr. Justice Hoffman — Of course the introduction of new 
evidence now is objectionable. But what I want to know is, 
whether you object to originals or any other paper being intro- 
duced ? 

Mr. Randolph — I understand that certain papers are now 
for the first time to be introduced before the Court. In order 
to identify these papers as coming from the archives of this 
State, Mr. Hopkins must be sworn. I do not desire to consent 
to any new examination of any description. 

Mr. Justice Hoffman — I do not understand that to be the 
matter at issue at all. 

Mr. Randolph — I do not presume to say how your Honors 
will judicially determine this matter. That is altogether for 
yourselves to decide. 

Mr. Johnson — I am not about to examine Mr. Hopkins. 
Mr. Hopkins has been examined. I am about to appeal, when 
the paper comes in, to induce your Honors to examine it for 
yourselves. When we are disputing about the integrity of a 
particular paper, upon the ground that it has not the signature 
of the man by whom it purports to have been signed, not 
only is it evidence, but the best evidence in the world is the 
production of the original paper. You cannot tell, by this 
printed record of the character, the similarity of a signature. 

If you will turn to page 2373 of the Transcript, your Honors 
will find some of the questions propounded by Mr. Randolph. 
He propounded several, I should judge, from the fact that the 
one I commenced reading from, is numbered "738." I think 
that brother Randolph beat brother Peachy on that score— and 
that was pretty hard work. 

Q. 738. Have you any recollection of having transmitted to 
the Governor of California any communication other than the 
dispatch concerning a grant of land to Andres Castillero ? 

A. Not a distinct recollection of any particular communica- 
tion, but the circulars which were sent to the other Governors 
were transmitted to him likewise. 

Q. 739. Look at the writings to be found on pages 273, 274, 



46 

275, 276 and 277 (in red ink), in volume 18, from the office of 
the Surveyor-General of California, and indorsed " Decrees and 
Dispatches, 1845 and 1846," and say whether the circular dated 
January 14th, 18-16. and the decree dated March 13th, 1846, 
and the circular dated March 24th, 1846 (copies of which are 
herewith filed and marked respectively, "Exhibits Castillo 
Lanzas Nos. 345, W. H. C"), respectively bear your genuine 
signature ? 

A. They do bear nvy genuine official signature. 

Q. 740. What is the difference between your official signa- 
ture and your private signature ? 

A. In my private signature I write my full name, and in the 
official signature, as Secretary of State, only one-half of the 
name is generally written, as I stated the other day. 

Q. 741. On these papers I observe that you write your name 
"Castillo Lanzas," and that your signature as you write it in 
signing the direct examination is " Castillo y Lanzas;" what is 
the reason of the difference — is it casual, accidental, or is there 
any reason for it ? 

A. It is because my half-signature has been, invariably, 
" Castillo Lanzas," in which I always omit the Christian names, 
the "de"and "y." 

[Counsel for the United States offers in evidence copies of the 
documents, with translation, referred to in question 739.] 

This is the paper, the original of which we wish to present. 
When the question is whether the originals are what they 
purport to be, and that depends upon the evidence furnished 
by the originals themselves, when the handwriting is disputed 
and the signature is disputed, indisputably is it the best way 
to produce the originals and then decide the question. 

Mr. Randolph — That paper does not contain his official 
signature. 

Mr. Johnson — No. He (Randolph) says that it is not 
Lanzas' official, but his private signature, which is here given. 
So much the better for him. 

I pass on until Mr. Hopkins comes in. Then your Honors 
will decide this matter for yourselves. All that I say now is, 
that an inspection of the original book in which Mr. Secretary 
Lanzas says is to be found his genuine signature, corresponds 



47 

exactly, both as to paper and as to signatures, with the paper 
upon which our grant is written, with the signature attached 
to that grant, and which Lanzas at the Bar has sworn was his. 

Mr. Billings — (Interrupting.) Mr. Hopkins is out of town, 
and will not be in until morning. 

Mr. Johnson — I am very unwilling to ask for an adjourn- 
ment sooner than the usual hour ; but I am very weary, and 
if the Court will oblige me by an adjournment until morning, 
I shall consider myself as receiving a favor at their hands. 

[The Court adjourned until morning.] 



48 



SECOND D.AY. 



Saturday, November 3, 1860. 

Mr. Johnson — I do not propose, may it please the Court, 
to add anything farther to satisfy you of the authenticity of the 
Mexican archives, or the claim to credit of the witnesses who 
came from Mexico and here testified to the integrity of those 
archives. I shall assume, or might assume, that the character 
of those archives could not be questioned by any one ; and all 
that I propose to say in addition now is, that, supposing it to 
be barely possible that your Honors might call in question 
the authenticity of the archives, and the fact that they disclose 
the title under which our clients claim, that doubt may be re- 
moved by the evidence outside of the archives, not derived at 
all from the witnesses by whom the archives have been proved. 

The evidence to which I refer is, in part, found in Mr. La- 
fragua's report. I hold in my hand what purports to be an 
authenticated copy of that report, printed by order of the 
Mexican Government. Beside this copy — -which was produced 
and positively authenticated by Mr. Bassoco, one of the Mexi- 
can witnesses, as your Honors are aware — another copy has 
been offered in evidence, which at one time came into the pos- 
session of my colleague (Mr. Benjamin) who is immediately 
next to me, and which has been by him established, as far as 
his means of establishing it goes. 

My brother upon the other side seemed to suppose — not that 
in point of fact there was any evidence which would lead, 
looking to the book itself, any intelligent man to the conclusion 
that this report had been fabricated in whole or in part — and 
has told your Honors, that it was " barely possible" that such 
a thing may have been done. 

Now, even assuming the existence of that " bare possibility," 
I am sure I need not say to the Court that that is no ground 
upon which a judicial judgment can be placed. You are to 



49 

decide upon probabilities, and not upon possibilities ; and if, in 
deciding between the probability and the possibility, you come 
to the conclusion that the probability infinitely outweighs the 
possibility, you will rest your judgment upon the probability. 

But what is the supposed possibility, even if you could look 
to that for the purpose of guiding you in your conclusions as 
to the fact ? What is the ground of that possibility ? This 
book purports to be an official publication ; a report by an offi- 
cial — a fact conceded at the time — to his Government, and pub- 
lished by the authority of the Government. It is published in 
Mexico. Nobody can question that. It is published in Mexico, 
on or about the time when it purports to have been published. 
Nobody can well question that ; and it contains not only a 
reference to the mine which is in dispute in this case, but it 
contains also an account of all the transactions in which that 
Government, during the period covered by the report, had been 
engaged, which fell within the jurisdiction of this particular 
officer. It is such a report of the proceedings of his particular 
department to his Government, during the period embraced by 
the report, as is the report of any of our Secretaries to the 
President, and communicated by the President to Congress; 
made to the President for the purpose of being communicated 
to Congress, and published by the authority of Congress. 

My brother has thought that he might with great propriety 
challenge your Honors' assent to the authenticity of the papers 
to which he has referred ; that he might with great propriety 
refer to the documentary proceedings of Congress ; that he 
could refer with propriety, and ask you to concede, with him, 
that there was no doubt of the fact to which he referred to the 
publication of speeches in the Congressional Globe. He has 
referred you to a speech made by Col. Benton, in 1850, two 
years after the treaty between Mexico and the United States 
was negotiated, for the purpose of satisfying your Honors why 
it was that the 10th Article in the original projei of the treaty 
had been stricken out by the Senate. Suppose we were to say, 
what proof, Mr. Eandolph, have you to satisfy the Court that the 
Executive Document No. 17. is what it purports to be, and was 
published at the time when it seems to have been published ? 



50 

What proof have you that the Congressional Globe is the Con- 
gressional Globe, and was published at the time when it pre- 
faces to be published ? Catching the suspicion which floats in 
the mind of my friend on the other side, and has been floating 
there since the commencement of this discussion, I almost be- 
gin to think it was contagious — the moment he put the book 
down, by an effort of instinct which I could not help, I took 
up the copy of the Globe that he had referred to, looked at the 
leaves in every form in which I thought it was possible to dis- 
cover whether those leaves had been incorporated into the re- 
port, went through the same process with the Executive Docu- 
ment — and I was almost inclined to believe that my friend on 
the other side, or the United States, had actually forged and 
manufactured that report. 

I have great respect, as I am sure your Honors have, and all 
who know him, for his intellect, and for his knowledge ; and 
when he said so positively, and in conducting the examination in 
relation to the authenticity of this report seemed to be so con- 
vinced, that those leaves upon which we were relying were in- 
terpolated into this report, and made long after the period 
when, according to this report, the report itself seems to have 
been published, I began to think that there was no reliance to 
be put upon anything. And indeed he, I think, on the second 
day of his argument, or the first — told the Court that it was 
almost impossible to arrive at certainty about anything. He 
did not know absolutely whether he had come from his house 
that morning and was here at all. I do not know whether he 
doubted his being here. We did not doubt it. We heard him, 
and we recognized his voice. We never shall forget it. 

a T} iere j s no matter !" said one of the philosophers ; " man is 
not sensitive, and man does not exist!" Dr. Johnson sug- 
gested a very sensible way to satisfy him that he had some 
feeling. " Try his shin with a club, and see if he does not cry 
out!" 

There are some things, may it please your Honors, about 
which the human judgment has no right to doubt ; and one of 
those is a publication made by a Government officer apparently 
for Government purposes, to accomplish some political policy 



51 

of the Government of which the officer is a member. That is 
entitled to credit ; and another thing is to be inferred as a 
matter of comity : that everything contained in the report made 
by such public officer is to be taken as true, as far as motive is 
concerned, as far as the determination fco tell the truth is in- 
volved. The officer may be mistaken ; his judgment may be 
erroneous ; his memory may fail him ; but his integrity no man 
has a right to question, unless that integrity has been impugned 
by some evidence outside of the official paper in relation to 
which the question may arise. But Mr. Lafragua has been 
examined, and he tells you that this report is precisely what it 
appears to be ; that it was published exactly as it purports to 
have been published ; that it was prepared by him in his offi- 
cial character, and in the discharge of his official duty. 

Me. Randolph — Mr. Lafragua did not testify to the volume 
at all. We had only a few pages presented by him. 

Mr. Johnson — All that relates to this matter was presented. 
He did not bring the whole book ; but the whole book is here 
now. The whole book is here now for inspection. Both are 
here. When he (Lafragua) spoke of the authenticity of the 
particular extracts, he looked to the book to see if the extracts 
were in the book, or correctly taken from it. He took them 
out of the book, and swearing they were correctly taken out of 
the book, he necessarily testified to the existence of the book. 
He said he made the report. On page 18 of Transcript he 
says: 

I made these marginal notes and annotations myself, to show 
what portions of the document relate to this particular subject. 
This document is taken out of a large bound volume which 
embraced my whole report as Minister of Relations, upon all 
subjects pertaining to my office, with accompanying documents. 
I took this portion for convenience, because it embraced every- 
thing which my said report contained relating to said Almaden 
mine, or Castillero's connection therewith. 

My brother Benjamin, some time in 1848 or 1819, became 
the counsel of what is called the " Tehuantepec Company ;" a 
company the purpose of which your Honors are aware of. The 



52 

success of that company depended, in part, on their being able 
to establish the validity of what was called the " Garay Grant." 
American citizens were invited to participate in the enterprise. 
The success of the enterprise would depend, more or less, upon 
the patronage extended to it by the Government. The company 
selected my brother as their counsel, for the purpose of enlight- 
ening, first, the public mind 3 and present the claim of that par- 
ticular grant ; and, secondly, for the purpose of instructing the 
Government as to the validity of the grant, in order to be able 
to obtain thereafter such assistance from the Government as 
the legitimate patronage of the Government might enable it to 
bestow. 

And he is in search of information. With his usual industry 
he looks everywhere for sources of information. Mr. Garay 
himself is in Mobile, Alabama. He has come from Mexico. 
He meets him at Mobile for the very purpose of consulting 
upon the enterprise in which our citizens were about to engage, 
and in which Mr. Garay had an interest ; and in the City of 
Mobile he is furnished by Mr. Garay with an exact duplicate, 
in all respects, of this document (Lafragua report). 

"What did Mr. Garay give it to him for ? He was not at the 
time the counsel for the New Almaden Company, and had no 
idea of it ! I do not know that he knew of the existence of the 
New Almaden mine, except as a general historical matter of 
which he may have become acquainted from the newspapers 
of the day. Mr. Garay gave it to him for the purpose of in- 
forming him and enabling him to set the public mind right on 
the validity of the Garay grant ; and the validity of that grant 
depended upon acts of the Mexican Government. Here was 
an official report made by an officer before whom, in the dis- 
charge of his official duty, the existence and the validity of that 
grant would have appeared. 

He (Mr. Benjamin) marks the passages in the book which 
relate to the Garay grant. He looked no farther. He searched, 
and Garay re-searched, for the purpose exclusively of obtaining 
information in relation to that grant. And the report that he 
made, and the speech that he made to the citizens of Louisiana 
to induce them to enter into this enterprise, was a report or 



53 

speech made in part from the information obtained by him out 
of this document — as he tells us in his testimony. 

Mr. Randolph — Please refer to that testimony. 

Mr. Johnson — Your Honors have, I believe, a copy of the 
Transcript before you. Mr. Benjamin's testimony is to be 
found on page 3026 of the Transcript : " State your name, age 
and residence." 

Mr. Benjamin — Don't read the age. 

Mr. Johnson — No, I will not read the age ; but as you 
first put it, it is lawful age. Well, everybody believed that. I 
will skip the rest ; but that tells more against my brother than 
if I was to read it. Take the next question : 

Examine Exhibit Bassoco No. 3, 0. H. on file in this case, 
purporting to be a printed copy of the report of Lafragua, Min- 
ister of Relations, to the Mexican Congress, etc. 

This is the document that had been proved by Mr. Lafragua, 
and by Mr. Bassoco, too. The question is : 

Examine this document (which I now hold in my hand) on 
file in this case, etc., and state if you have a duplicate of said 
Exhibit ; and if you have, please produce it, and state when it 
first came into your possession, under what circumstances you 
received it, and from whom, etc. 

This is the one he examined (holding up a volume). He 
said he got this in 1849 ; that he examined it, and upon com- 
paring it with the one proven by Lafragua and Bassoco, and 
marked Bassoco No. 3, he finds that his is a duplicate of the 
other " which had been forwarded from the City of Mexico to 
Don Jose Graray, and was by him delivered to me. It was 
furnished me for the purpose of proving the legality and valid- 
ity of that (the Graray) grant, about which doubts had been 
raised in the United States. I was chairman of a sub-com- 
mittee of the citizens of New Orleans, who had held a public 
meeting for the purpose of devising means of securing pos- 



54 

session of that grant," etc. "I received at the same time from 
Mr. Garav a number of other pamphlets and books in reference 
to the Tehuantepec grant." 

Well, I will stop there. I suppose nobody could doubt 
from that general comparison, that this (the one that was be- 
fore filed) is an exact counterpart of the one produced by my 
brother. But the evidence shows that the portions of the two 
reports involved in this case, were compared together by my 
brother upon the other side, and Mr. Benjamin, and found to his 
(Mr. Eandolph's) satisfaction to be identical, word for word. In- 
dulging in the suspicion, which is a part of his nature as far as 
this case is concerned — and which has almost got to be a part 
of my own, for I have caught it — my brother seemed to sup- 
pose that by some hocus-pocus or other these extracts which 
appear upon the record of this New Almaden mine controversy, 
got into the copy produced by my brother Benjamin, not 
through any instrumentality of his, but by means of contri- 
vances set on foot by somebody else ; and he goes upon the 
search in this wise — I mean in search for the just foundation 
of his suspicion : 

What did you do with the book after you had used it for the 
purpose for which you obtained it from Mr. Graray ? 

I had it in New Orleans. 

Had anybody any access to it ? 

No, not as far as I know. 

What did you do with it afterwards ? 

Why, having to use the information it contained, and it 
being my voucher for the truth of the representations I made 
in relation to the Garay grant, I brought it with me in my 
trunk to Washington. 

What did you do with it then ? Where did you keep it ? 

I kept it in my room in my lodgings at Washington. 

Up stairs, or down ? 

Up ; next to my library, in my office. 

Where did you keep it ? 

In the next room. 

In your office, in a book-case ? 

Yes. 

Was there a key to it ? 

Yes. 

Did you lock it? 

No. 



55 

Then, he was satisfied; the thing was out; my brother's 
suspicion turned out to be particularly well-founded ! Not 
even suspecting his suspicion, my brother Benjamin had in- 
differently said that he had handed the book to a Mr. John A. 
Eockwell. " Well, and why ?" " He came to see me about 
the Almaden case ; I had received a letter from the agents of 
the Almaden Company in New York advising me before I 
saw Mr. Eockwell, that Rockwell would call upon me for the 
purpose of retaining my services in the Almaden case ; and in 
the course of the interview between Mr. Rockwell and myself 
in relation to the Almaden case, he (Rockwell) said that the 
charge of fraud in relation to the title papers upon which the 
claim to the mine rested, was as he thought disproved, wholly 
unfounded, from evidence to be found in a report made by the 
Minister of Interior and Exterior Relations, Lafragua, as far 
back as 1846 or 1847, giving information to his Government 
of the conduct of the Government in relation to this very mine 
in 1845." 

Not a word had dropped from Mr. Rockwell intimating that 
he knew that Mr. Benjamin had this copy; not a word — nor 
could there — because he did not know it. At the moment that 
the suggestion was made that this paper, or a paper like this — 
a report by Lafragua of the conduct of the Mexican Govern- 
ment in 1845, made by him in his official character to the Gov- 
ernment of Mexico, contained conclusive evidence of the integ- 
rity of the title to the Almaden mine — my brother said : " I have 
got Lafragua's report." I know nothing about its contents, as 
far as relates to the Almaden mine ; but I must have a copy of 
the report to which you refer, and let us see what it is. 

And he goes to his unlocked book-case. There he finds it 
notwithstanding it was unlocked. He takes it out, finds the 
very evidence to which Mr. Rockwell had reference as being 
contained in that report ; and Mr. Rockwell asks him to let 
him take it, which of course he did. 

Your Honors, both of you, I think, know who John A. 
Rockwell is. A member of Congress originally — a distin- 
guished member for many years ; and now not only one of 
the most distinguished members of the Bar of the Supreme 



56 

Court of the United States, but a man of the most unquestioned 
honor. He takes this book in "Washington for the purpose of 
preserving it, and getting it so authenticated as, if possible, to 
remove all doubts from the mind of the Attorney General, who 
had caught this "suspicious " disease. He goes to the Mexican 
Minister to give him an authentic certificate, that this report is 
what it purports to be. He keeps it. 

Mr. Eandolph — Is that certificate in evidence ? 

Mr. Johnson — I do not offer it as evidence. It is there. I 
only want to show what Mr. Kockwell did. Mr. Benjamin 
speaks for himself. Here is the certificate ; it speaks for itself. 

What did Mr. Eockwell do ? 

Mr. Benjamin, when did you next see that report after 
you gave it to Mr. Eockwell ? 

Well, the next time I saw it afterwards was in Washington, 
Mr. Eockwell showed it to me with the certificate annexed to it ; 
I did not see it again till I saw it in San Francisco. Mr. W. 
E, Barron told me in New York, last July, that Mr. Eockwell 
had given it to him to be returned to me. 

He was asked further about the book. He did not know 
the book had come on. All he recollected was, that he had 
given it to Eockwell. He wanted it here, very naturally, and 
he asked of Wm. E. Barron, one of the parties in this case, and 
who was to go on with Mr. Benjamin and myself as a friend 
and a client— a friend as intimately as he is a client — and Bar- 
ron tells him, " Eockwell gave me the book to which I suppose 
you refer." 

Mr. Eandolph — Eead the testimony. 

Mr. Johnson — Well, I will read the testimony. I cannot 
make it as strong as the witness makes it. Page 3028. He 
(Benjamin) says : 

When I reached New York, last July, on my way to Cali- 
fornia, Mr. William E. Barron, of whom I inquired what Mr. 
Eockwell had done with the volume, told me he had it in his 
trunk ; that Mr. Eockwell had given it to him to be returned 



57 

to me ; and on arrival at San Francisco, Mr. Barron took it 
from his trunk and delivered it to me ; and here it is (holding 
up the volume). 

Now, says my brother, what do you know was done with 
that paper, from the time it was handed to Kockwell to the 
period when, in San Francisco, William E. Barron handed it 
to you ? Why it is fourteen months — 

Me. Eandolph — Eighteen. 

Mr. Johnson — Eighteen months ; still more striking, telling, 
and suspicious ! Why, what an infinite deal of forgery can be 
done in eighteen months ! And, may it please your Honors, 
awake still to the idea, carried away by the delusion — if he 
will permit me to say so — under which he had been laboring 
with reference to the original report of Lafragua, he questions 
my brother, a witness, to know whether in his opinion it would 
not have been possible, even if this book was a genuine book 
in relation to other matters, published at the time when it pre- 
faces to be published, published in good faith under the instruc- 
tions of the officer by whom the report purports to. have been 
made, to have extracted from the original publication so much of 
it as relates to the mine ; or, if there was nothing in it relating to 
the mine, to have taken out some of the original leaves contain- 
ing other matter, and substituted there instead other leaves con- 
taining what is there now in relation to the mine ! And they 
go into a trial of skill, as to the possibility of doing it ! Mr. 
Benjamin says, with great simplicity, that he is not so well ac- 
quainted with the art and skill of the forger, as to believe it is 
probable. He thinks it is improbable. Everybody must say 
it is improbable. 

Well now, if improbable, this report being true, what doubt 
can there be of the authenticity of the Mexican archives of 
which I spoke 3^esterday, if it was possible to doubt on that 
subject at all, without the aid of the report. The report, manu- 
script report, is here ; all written. I have no doubt, in Mexico 
by my brother Billings. He got it written there in Mexico. 

But, may it please your Honors, passing by these circum- 



58 

stances which hardly seem to have weight enough to be worthy 
of serious remark — assuming now that the report is what it pur- 
ports to have been, that it represents correctly the transactions 
which it does represent — what possible doubt can there be that 
there was, in 1846, a communication made to the Mexican 
Government by Castillero, in relation to the mine, and that all 
the proceedings stated in the report in relation to the action of 
the Mexican Government upon that application of Castillero, 
took place ? If they did, there is an end of the controversy, 
as far as the authenticity of the papers is concerned. But that 
is not all. Let me refresh the Court's recollection as to the 
contents of the extracts proved by Mr. Benjamin, and proved 
by Lafragua; and correctly proved, as appears by the pro- 
duction of the copies themselves to which they each testified. 
I read from page 1212 of the Transcript : 

Secretary's Office of the Junta de Fomento \ 
y Administrativa of Mining. ) 

Most Excellent Sir : — In compliance with your Excel- 
lency's superior order of the 3d inst., directing this Junta to 
give an account of the matter confided to its care since the 
epoch of its report in 1845, their present condition, with the 
object in view, in order to form the Memoria which should be 
presented to the general Congress of the nation, immediately 
on its installation, the Junta has the honor to submit to your 
Excellency a simple historical relation of the most important 
matters with which it has been occupied for the last two years, 
and their present situation, with the reflections and recom- 
mendations which it has deemed suitable for the better and 
more faithful performance of its duties. * 

It was Lafragua's business to make a report such as this ; 
and amongst other objects, embraced by his official duties in 
that particular, were the proceedings of the Junta during the 
period to be covered by the report. And applying to the 
Junta to get information from them to enable him to make the 
report, he receives from the Junta a communication which I 
have just read in part. 

Now what more did they tell him ? 

The Junta, on the 21st of April last, sent to the professional 



59 

Board of the College some specimens of cinnabar which. Don 
Tomas Eamon del Moral presented, in the name of Don Andres 
Castillero, a resident of Upper California, with a representation 
in which he asked for assistance to work a mine which he had 
discovered in the Mission of Santa Clara, known by the old 
Indians who got out of it vermilion to paint their bodies. 
The assay made by the Professor of Chemistry, of the ores in 
common, produced the extraordinary ley of thirty-five and a 
half per cent., which was communicated to the Government on 
the 5th of May, representing that Senor Castillero had been 
asked what assistance he required of the Junta. 

The archives prove exactly that fact; that on the 5th of 
May he was asked — having made known to them before the 
discovery of the mine, and its having turned out to be a mine 
of extraordinary richness — to state what assistance he required 
to the Junta. 

What do they say then? 

That Senor Castillero presented his petition in due form, and 
it was very attentively examined by the Junta ; he made his 
propositions, to which this (Junta) agreed, to wit, that there 
should then be delivered to him five thousand dollars in money, 
eight iron retorts of those which the Junta ordered to be made 
for their former examinations, and all the quicksilver flasks it 
has in the negotiation of Tasco. 

That is true ; because that is precisely the answer made by 
Castillero when he is asked what assistance he required. He 
wanted, he said, the $5000, the eight iron retorts, and all the 
quicksilver flasks that the Junta had in the negotiation of Tasco. 

What else did he do ? 

Senor Castillero obligated himself on his part to repay said 
advance in quicksilver, at the rate of one hundred dollars a 
quintal, within six months from his leaving the port of Mazatlan. 

That is in his answer, as now spread upon the archives before 
your Honors. What else ? They go on to say that — 

This agreement was approved by the Supreme Government 
on the 20th of the same month. 

The archives tell the same story to the letter. What else ? 



60 

Why was it not carried out? They show why it was not car- 
ried out. 

This agreement was approved by the Supreme Government, 
on the 20th of the same month ; but on account of the decla- 
ration (of war) made by the United States of the North, when 
he was going to receive the draft on Mazatlan, the ministry 
issued the order of September 19th of this year, directing the 
suspension of all payments of the branch of quicksilver except 
the support of the college and expenses of the office. * * * 

That was true, too, as is proved by the archives. 

Now here is another extract from another part of the report. 
It is not the Junta still speaking, but Lafragua communicating 
what they have told him to the Congress, by whom the whole 
matter was to be examined : 

In Upper California, a mine (criadero) has been discovered 
whose ley surpasses that of the best mine known, that of Alma- 
den, which does not produce more than thirteen per cent., while 
ours, by the assays made in the College of Mining of this Capi- 
tal, exceeds thirty-five and a half per cent. 

Now let us turn to what the Junta itself has further said on 
the same subject to the Minister: 

* * * This is not the occasion to present together all the 
labors of the Junta to correspond to the high confidence with 
which the Government has honored it. A part of them are 
expressed in this note, and the others may be found in the 
memorials, reports, and multitude of communications which are 
in the office of this ministry. For the present it will merely 
assure what is shown in these documents, to wit, that the spirit 
of enterprise has been so stimulated that the quicksilver mines 
in the principal Departments of the Kepublic are being worked, 
both by companies and also by individuals ; that in the Depart- 
ment of San Luis Potosi, the quicksilver extracted is in propor- 
tion to the silver reduced, so that no foreign quicksilver is 
required ; that in Upper California, in the Presidio of Santa 
Kosa, there has been discovered by Senor Don Andres Castil- 
lero a great mine, the leys of which are truly surprising, since 
the result of the assays 

They had then been made. So the archives say, and so our 
witnesses swear. 



61 

— made in the College of Mining gives, as the common fruits, 
over thirty-five and a half per cent., while that of the best mine 
which is known, that of Almaden, does not exceed thirteen 
per cent., and finally, that, from all the data collected, it may 
be hoped, resting on a good foundation, that our mines of 
quicksilver are more than sufficient to supply all that is required 
for the reduction of our silver. 

This grand national enterprise the Junta has not been able 
fully to carry out, because it has been deprived of one of its 
funds of one per cent, of the circulation of money, without sub- 
stituting any other, and because of the remainder it could only 
dispose of one-third part, since the Government, in the defi- 
ciency of the treasury, has used the rest. This evil was in- 
creased to the lamentable extremity of leaving it (the Junta) 
without any, by the order of the 10th May last, which directed 
the suspension of all the payments which were made by the 
public treasury. 

They then go on to add : 

The sad results of such determinations the Junta will not 
stop to detail ; they are manifest from what has already been 
here shown. #*-#####** 

The Junta has the honor to present to your Excellency its 
highest consideration, most distinguished esteem, and most pro- 
found respect. 

God and Liberty. 

Mexico, November 17th, 1846. 

VlCENTE SeGUKA, 

President. 
The Secretary being occupied, 

Isidro E. Gondea, 1st Clerk. 

Now, that is dated, may it please your Honors — and God and 
Liberty are called upon to witness it — November the 17th, 
1846, and signed by Yicente Segura, President of the Junta. 
It is impossible, then, to doubt, if the archives were out of view: 

First. That there was communicated to the Junta the dis- 
covery of the mine. 

Second. That there were specimens of the ore of the mine 
transmitted to Mexico for the purpose of being assayed. 

Third. That these specimens were assayed and showed the 
extraordinary ley of 35 £ per cent. 



62 

Fourth. Tnat in consequence of this, on the 5th of May, Cas- 
tillero was asked by the Junta what assistance he proposed 
should be granted him on the part of the Mexican Govern- 
ment ; that he made the propositions referred to by the Junta ; 
that they were accepted by the Junta, as far as they had the 
authority to accept ; and only not carried out because in the 
struggle between themselves, a comparatively feeble nation, 
and the immense power of the United States, the Govern- 
ment of Mexico wisely thought, with a view to defend them- 
selves against subjugation by the United States, that they would 
retain all moneys in the hands of their several bureaus, hazard 
everything, sacrifice everything, for the purpose of defending 
their territories against the invasion of the United States. 

That, and that alone, prevented the agreement from being 
carried out ; and it is perfectly consistent with the fact of the 
agreement. All that is necessary for us to show in this case, 
is the existence of the agreement ; the fact that it was entered 
into, by which, between Castillero and the Junta, there was a 
contract made (depending for its ultimate execution, of course, 
on the action of the Mexican Government), by which Castil- 
lero was to become, as far as the laws and Government of 
Mexico were concerned, the owner in this mine of all that 
under the laws of Mexico could constitute an individual pro- 
prietorship of a mine. 

Me. Eandolph — Both orders are mentioned; that of the 
10th of May, and that of the 19th of September. 

Mr. Johnson — That of the 19th of September, suspended 
all payments. 

Mr. Eandolph — By which of the orders was Castillero pre- 
vented from receiving this assistance ? 

Mr. Johnson — That of the 10th of May, as I understand it. 
It makes no difference. He was prevented anyway. Whether 
the 10th of May, or the 19th September, is of no consequence. 
The acts say the 10th of May ; but it is hardly material whether 
it was the one elate or the other. If we find that at any date 



63 

the Mexican Government took steps that prevented the Junta 
carrying out this agreement with Castillero, it proves the exist- 
ence of the agreement. 

Me. Eandolph — The communication says : " But on ac- 
count of the declaration (of war) made by the United States 
of the North, when he was going to receive the draft on Ma- 
zatlan, the Ministry issued the order of September 19th of that 
year." 

Mr. Johnson — That is a mistake of the papers. It is the 
10th of May. The act shows that. Your Honors see, that on 
looking at page 1213 of the Transcript, which I have read 
before — 

" This evil" they say, was increased to the lamentable ex- 
tremity of leaving it (the Junta) without any, by the order of 
the 10th of May last, which directed the suspension of all the 
payments which were made by the public treasury. 

If your Honors will turn to page 1775 of the Transcript, you 
will have an explanation as to the differences in these dates : 

This Junta received yesterday, Sunday the 20th, the offi- 
cial communication which your Excellency is pleased to ad- 
dress to it of the 19th inst., transcribing that of his Excellency 
the Minister of Finance, of the same date, in which the Junta 
is informed that his Excellency the General-in-Chief, in exer- 
cise of the Supreme Executive power, had thought proper to 
decree, in view of the official note of date the 12th, that there 
be given to the fund established for the Encouragement of 
Quicksilver Mines, the destination to which it is directed in 
favor of public instruction, but that the great penury of the 
Treasury being so notorious, the Supreme Government requires 
that from the dotal fund a loan be made to it of twenty-five 
thousand dollars, with the understanding that the payment of 
the same shall be decreed as soon as possible. 

That is elated the 21st of September, 1846. 

The Court will have no difficulty in understanding it. I do 
not care whether we are right or wrong as to dates. It is hardly 
material, the one date or the other. You may take the one 
date, but it all goes to prove that, owing to some cause, all that 



64 

had been done was not carried out. There is no pretense of 
mistake as to dates, so far as this mine is concerned. That is 
the way the subject was before them on or about the 5th of 
May, when representation was made to Castillero to make a 
proposition. The proposition was made and accepted, but not 
carried out. 

On the 29th of May, 1846, (page 1697 of Transcript) : 

It was also resolved, in conformity with the report of the 
Controller's office, that twenty-five dollars be paid to the No- 
tary, Calapiz, for proceedings in the instrument of agreement 
which had been made with Don Andres Castillero, to assist his 
quicksilver enterprise in the mine of Santa Clara, in Upper 
California, embraced in the official order for the suspension of 
all payments for this branch. 

Now, that proves beyond all doubt, provided the entries be 
correct, that an agreement had been made between Castillero 
and the authorized representative of Mexico upon this subject ; 
that it had been reduced to writing ; that the cost of reducing 
it to writing was $25, and that this $25 was directed to be paid 
to the Notary for his having transferred into writing the agree- 
ment between the Junta and Castillero. That is, as your Hon- 
or's see, on the 29th of May, 1846. 

It is perfectly clear, then, may it please your Honors, if we 
stop here, that the facts upon which we rely, occurred on the 
dates when we say they did occur. But it is said by my brother 
that there are some suspicious circumstances ; that notwith- 
standing all this testimony of the Mexican witnesses, and the 
confirmatory evidence to be found in the Lafragua report, there 
are some circumstances calculated still to leave doubt as to 
whether everything contained in those archives could have 
occurred. And one is, that it seems, according to our state- 
ment, that a man by the name of Pina, sailed from Monterey 
in a brig called the Hannah. 

Well, now, I do not understand my brother, in reply, 
seriously to contest the fact that the Hannah did go down ; did 
carry somebody ; and did arrive, on or about the time when we 
say she did arrive. He had obtained, or his client (Lauren- 
eel) had obtained a deposition of a Capt. Paty, which was in- 
tended to show that he took Pina down. 



65 

Mr. Randolph — The deposition was intended to show that 
he took Castillero down ; and that in the year 1859, when the 
deposition was given, Pina had never figured in the case, nor, 
so far as I knew what was to turn up in the ease, in anybody's 
contemplation, until the year 1859. 

Mr. Johnson — Then you took the deposition to prove that 
the vessel did not go down. Captain Paty's evidence is relied 
od, at least for the purpose of showing now — whether that was 
the original purpose for which it was offered or not — that Pina 
went with Castillero in another vessel. We say he went in the 
Hannah. We say the Hannah left Monterey at the time we 
have stated, and arrived on or about the 1st of April at Ma- 
zatlan. 

Now, amongst other things, may it please your Honors, short 
of the direct evidence which we offered in advance, applicable 
to the locality of Monterey from which the vessel went, in 
order t o show that our statement was right and that she ar- 
rived at Mazatlan on or about the 1st of April, we produced 
and proved a letter dated " On board the U. S. ship Ports- 
mouth, in the port of Mazatlan, April 1st, 1846," purporting to 
have been written by Mott, Talbot and Co. You will find it 
at page 3020 of the Transcript. I will not stop to consider 
the weight of the evidence which establishes the authenticity 
of that letter. The evidence is all one way. The letter is 
found here amongst the papers of Thomas 0. Larkin, after his 
death. The letter is proved by those who have been accus- 
tomed to see the signature of professed writers. 

Now, assuming the letter to have been proved, and assuming 
— as you cannot avoid doing— that it is true, what does it es- 
tablish with relation to the Hannah ? Did such a vessel leave 
Monterey ? Did she carry communications from Castillero ? 
Did she stop at Mazatlan ? Did she have communications from 
Mr. Larkin, directed to Mazatlan ? And when did she arrive 
at Mazatlan ? This letter bears date the 1st of April. What 
does it tell us ? It is written on board the ship, and the writer 
begins by saying : — "It has been hinted to us that this ship" 
(the Portsmouth) V is bound to Monterey," (from whence we 



66 

say Mr. Larkin had written to them,) " and although the fact 
is doubtful, we avail ourselves of the chance to acknowledge 
the receipt of your much valued favors of the 2d, 4th and 5th 
nit.," etc. "Your letters have this moment reached us per 
' Hannah,' and we are much obliged for their contents. You 
were correct in supposing that the destination of this vessel 
when she sailed from this, was not known to us. * * * * We 
are much obliged for the fruit, which, however, as the ' Hannah' 
has just anchored, we have not yet received." 

Then he goes on to speak of California. My brother sys 
seriously : That letter cannot be genuine, for who ever heard 
of fruit being in Monterey in March, 1846, and being sent 
down to Mazatlan ? Well, I suppose such is possible in the 
course of nature, according to what I have seen here. You 
put the seed in the ground 

Mr. Bandolph (interrupting) — The course of nature is 
changed in different places. 

Mr. Johnson — Nature is apt to be pretty much the same 
the world over. She is not in the hands of politicians. She has 
a sovereignty of her own, about which there can be no dispute. 
You may call it " squatter sovereignty," or call it anything 
else ; we cannot reach it, and thank God we cannot. If we 
could, we would turn the world " topsy-turvy" in a very 
short time. No fruits in California ! Why, if you put, I am 
told, a peach-stone in the earth, it bears peaches in ten months ! 
Everything grows here wonderfully. A high officer, a valiant 
officer of the navy — I won't mention his name because he is 
single — after I had been here but a few days, came up to the 
office where I was, and said: "Come down, Colonel, I want you 
to see a little girl a year and a half old. She is taller and larger 
every way than our own folks at home at sixteen." " Why, 
said I, that is wonderful !" " Come down with me to the 
market. I will show you a peach you cannot get into your 
hat. Upon my honor it is true." Well, I could not doubt an 
officer's honor ! 

Well, now, may it please your Honors, he does not say it 
was California fruit; he only says he sent fruit. 



67 
Mr. Kandolph — I give it up, if a baby is fruit. 

Mr. Johnson - ' — A baby is fruit, but I suppose not the fruit 
lie sent down in jars. 

"Well, the fruit has gone there, and the vessel is there on the 
1st of April. She goes there from Monterey, and she goes 
there bearing letters from Mr. Larkin. Well now, what have 
we done? Why, we have produced Mr. Larkin's books. 
These colleagues of ours, Messrs. Halleck, Peachy and Billings 
— and they have the means of doing it honestly — they are not 
satisfied with presenting a case for hearing until they have pre- 
sented all the evidence that is to be procured anywhere. They 
wanted to prove amongst other things, that the Hannah did 
sail ; and they produced a letter dated the 23d of April of that 
year to Capt. Gillespie from Mr. Larkin, and copies of letters 
written by Mr. Larkin, by the Hannah, in which he speaks of 
the Hannah. Not satisfied with that, they were successful in 
finding a species of blotter kept by Mr, Larkin as an official 
book in order to show the daily transactions at the Consulate, 
for the purpose of showing that there was a ship called the 
Hannah, where she came from to Monterey, when she arrived 
in Monterey, and where she went to from Monterey. Now, as 
to the last, first. 

This looks a good deal like a genuine book (holding up a 
volume.) It is not only proved by Mr. Swasey — as he has not 
sworn that it is a genuine book, the probability is that it is 1 
Young Mr. Larkin produces it ; and he says that it is one of 
the books of his father. What is it ? A strange sort of diary, 
kept day by day by the father, as you see. All sorts of things 
in it ; transactions of the household, as well as transactions of 
the Consulate. 

Under date of February, 1846 — the elate is at the head of 
the folio from which I now read — he says : 

Thursday, 12 — Brig Hannah, from Mazatlan. 

Where was she at the time of this entry ? In Monterey. 
How long did she stay ? And when she went off, where was 
she destined ? Let the book answer again. 



68 

Under the head of March, 1846 — again I read from the 
head of the page — he says : 

Saturday, 7 — Brig Hannah, for Mazatlan. 

Now, if these entries are genuine — and nobody questions it — 
she arrived herefrom Mazatlan on the 12th of February ; and 
she left here for Mazatlan, on the 7th of March, 1846. 

Mk. Randolph — You proved she went to San Bias first. 

Mk. Johnson — I do not care where she went. She may 
have gone around the globe, or to the Indies ; it is perfectly 
immaterial. I have got her here " for Mazatlan." The entry 
in the Consul's book says she was destined " for Mazatlan." 
That she was destined for Mazatlan is certain ; that she got to 
Mazatlan on the first of April is equally certain — for that is 
proven by Mott, Talbot & Co's letter. 

Now, what did she carry? Turn to page 2667 of the Tran- 
script. You will find what is proved to be a correct copy from 
an original letter taken from the Consular book, dated " Con- 
sulate of the United States — Monterey, California, March 8th, 
1846 " directed to Colonel Fremont: 



Sir: — With this you have my Consular answer to the 
General aud Prefecto's to you of last week, etc. * * * * 
By your messenger of last week I forward some United States 
newspapers, etc. * * * * I then informed you that there 
was an American brig (brig "Hannah") of Salem, at anchor 
in this port, bound to Mazatlan, whose supercargo I had re- 
quested to remain here until the third day, to enable you to 
send letters to the United States, if you were so inclined. 

Now, I assume that letter to be what it purports to be — an 
authentic letter ; nobody can doubt it. And Mr. Larkin told 
the truth when he communicated, antecedent to the 8th of 
March, to Col. Fremont, by letter, that there was in Monterey 
a vessel called the Hannah ; that she was about to leave upon 
or before the fifth ; that he had persuaded her supercargo to 
remain until the third day. to enable Fremont, by her, to inform 
the Government of the United States of the transactions in 



69 

California, provided he should think proper to transmit any 
communication. 

But that is not all. On the 3d of April, 1846, there is 
another letter, dated the 3d of April, port of Monterey — and is 
to be found on page 2667 of Transcript : 



Consulate of the United States of America 
Port of Monterey, Cal., April 3d, 1846. 



■I 



Sir : — Don Andres Castillero, formerly member of Congress 
from this Department, leaves this port in a few days for 
Acapulco, on board the Hawaiian barque Don Quixote, as 
Commissioner to Mexico, from General Jose Castro, Military 
Comandante of California ; he will arrive in Mexico by the 
twenty-fifth or thirtieth of this month. 

I am under the impression that the President of Mexico is 
to be informed from Don Andres, or the correspondence he 
carries, that there is a danger of invasion from Americans (I 
am confident there is not) in this country, and to give some 
information relative to what they call driving Captain J. C. 
Fremont out of California ; he is yet, I believe, surveying, or 
resting his horses in the interior. 

When a translation of Capt. Fremont's letter was first given 
to the authorities, the words "and refuse quarter," were wrote I 
will give no quarter. The translator informed the Alcaide of 
the mistake. It may be so printed ; in which case, you have 
a copy that should immediately follow in the Mexican papers, 
for which purpose, and that you may be well acquainted with 
all the circumstances, I send you copies of the Consular corres- 
pondence on the subject. About four hundred emigrants 
arrived in California in 1845. At the town of San Jose, eighty 
miles from Monterey, Don Andres Castillero had discovered a 
quicksilver mine ; the ore produces from fifteen to sixty per 
cent. I have seen him, from an old gun-barrel, in thirty 
minutes, run out about twenty per cent, in pure quicksilver. 
This must be a great advantage to California. 

I remain, sir, your most obedient servant. 

To the Hon. Minister of Legation of the United States of 
America, City of Mexico. 

That does not relate so much to this particular question. But 
the next does ; it is directed to Major Gillespie, and is on page 
2668 of the Transcript : 



70 

Consulate of the United States of America, ] 
Monterey, April 23d, 1846. J 

Sir : Captain Montgomery of the " Portsmouth," being under 
sailing orders (the 1st or 2d instant) at Mazatlan, was waiting 
for the Mexican mail, when Commodore Sloat heard, per brig 
"Hannah," of the situation of Capt. Fremont, near San John's, 
and immediately dispatched the ship. She was twenty-one 
days from Mazatlan to Monterey. 

Well now, we find the "Portsmouth," according to Mott, 
Talbot k Co.'s letter, at the port of Mazatlan on the first of 
April. Commodore Sloat was the flag-officer. He heard, as 
this letter of Mr. Larkin says, per brig "Hannah" which arrived 
on the 1st of April, of the situation of Capt. Fremont. What 
does he do? He sends up the "Portsmouth" on the 1st of 
April ; and she arrived here in some twenty-one or twenty -two 
days. That makes the dates correspond with the period when 
we say the voyage of the " Hannah " was performed, more or 
less, as near as could be expected. 

Again, on the 2d of May, 1846, Mr. Larkin writes to Capt. 
Montgomery, of the "Portsmouth," as follows: 

Five or six miles from the town of San Jose, and near the 
Mission of Santa Clara, there are mountains of quicksilver ore, 
discovered in 1845 by Don Andres Castillero, of Mexico, which 
I have twice seen produce twenty per cent, of pure quicksilver, 
by simply putting the pounded rock in an old gun-barrel, one 
end placed in the fire, the other end in a pot of water, for the 
vapor to fall into, which immediately becomes condensed. The 
metal was then strained through a silk handkerchief; the red 
ore produces far better than the yellow. There appears no end 
to the production of the metal from these mountains. Work- 
ing of the quicksilver is but now commenced. 

Now, are these letters genuine ? I am addressing gentlemen 
whose intelligence no one can question. The books almost 
prove themselves. They are produced by the son of the Con- - 
sul, taken from the archives of the Consulate ; having been 
kept by the Consul as the archives of his office. Keason and 
law alike invoke your Honors to give to these books, until 
they are contradicted, the credit of truth. But, it is supposed 



71 

that it is barely possible to excite some doubt as to the authen- 
ticity of these several letters. "Were the letters written, copies 
of which appear in these books ? 

Mr. Swasey swears — his testimony is given on page 2659 of 
the Transcript — that he was the clerk at the time these letters 
were written, and at the time when another letter, dated the 
23d of April, 1846, was written ; that he was called upon to 
testify in this case in behalf of the claimants by Messrs. Halleck, 
Peachy & Billings ; that he was unwilling . to testify until he 
should be able to refer to documents which would place the 
accuracy of his testimony beyond all doubt ; that, as soon as 
an application was made to him to testify, he searched for the 
books of the Consulate, in which, according to his recollection, 
he was certain that letters would be found to answer all the 
inquiries that the counsel proposed to put to him. 

Why, he was prudent, may it please your Honors. He 
found some of these letters, but he did not find all. He tells 
us that he found one of these two books. He got that from 
Mr. Larkin. But he was not satisfied still. Some four or five 
weeks, or more, after he obtained the book that my brother has 
before him — which book contained in part evidence confirma- 
tory of his own recollections of the transactions to be inquired 
into — he heard incidentally that there was in brother Eandolph's 
office another one of these books of the Consulate in which, 
according to his recollection, there was to be found other con- 
firmatory evidence. He went to young Larkin, and thev 
together went to brother Randolph's office and asked him 
about the book. Brother Randolph produced it. 

Now, my brother Randolph seems to suppose that there was 
something in the conduct of Mr. Swasey — to use brother Ran- 
dolph's own language — " excessively impertinent." It is not 
that what Mr. Swasey states, did not occur ; for I asked my 
brother, as the Court will recollect : Do you mean to deny that 
what Mr. Swasey states in relation to the finding of the book, 
did not take place ? No, says my brother. But for some 
cause or other — 

Mr. Randolph — (interrupting). The word "finding" is 
used in relation to that which was never lost. 



72 

Mr. Johnson — It was u lost " to Mr. Swasey, and it was 
"lost" to the son of the Consul. I do not know what my 
brother Eandolph may call "lost"; the book could not be 
found. I am of the opinion, that when a thing cannot be found, 
it is lost. 

Mr. Eandolph — The book was in my possession ; the proper 
persons could come to me at any time to procure it. 

Mr. Johnson — Of course, if they knew you had it. 

Mr. Eandolph — Mr. Larkin knew that I had it ; he lent it 
to me. 

Mr. Johnson — Mr. Larkin was dead. Re could not go for 
the book. His son says that he did not know who had the 
book. His son so swears. I mean the son who came and tes- 
tified in this Court. So far as he was concerned, as he swears, 
the book was lost. 

Now, he goes to make the inquiry of Mr. Eandolph, in 
whose possession he incidentally heard that this book was. 
This is not impeaching brother Eandolph by any means. God 
forbid. My brother seems to think that everybody must have 
known where the book was. Oh, no ! God forbid that every- 
body should know what is in my office — all the time. 

I obtained the book, Mr. Eandolph says, from the late Thos. 
0. Larkin, and Mr. Swasey obtains the book from Mr. Ean- 
dolph's office. The question is asked by Mr. Peachy, with re- 
spect to these books : 

Q. 10. Where did you obtain them ? 

A. I obtained the book entitled " Copies of Official Letters," 
from Mr. Frederick Larkin, and afterwards, with Mr. Frederick 
Larkin, called upon Mr. Edmund Eandolph, at his office, and 
inquired for the book entitled " Correspondence with the De- 
partment of State." He pointed to a safe in the office, saying 
that he believed Mr. Henry Laurencel had locked up the book, 
and that Mr. Sellier had the key of it. I went to Mr. Sellier, 
who came, unlocked the safe, and Mr. Eandolph delivered the 
book to Mr. Frederick Larkin, who then delivered it to me. 
This was after Mr. Thomas 0. Larkin's death. Mr. Frederick 
Larkin was his eldest son, and one of his executors. 



73 

This is his answer to the question, and it is all true, as is 
conceded. 

Mr. Randolph — Anybody else, with proper authority, could 
have procured the book. 

Mr. Johnson — You do not understand me. I admit that. 

Mr. Randolph — I understand Swasey, very well. 

Mr. Johnson — If you understand him differently from what 
he said, you understand him differently from what I do. 
"Whether he is given to suspicion, what he had in his heart, I do 
not know. I know the counsel (Mr. Randolph) needed that 
book^for no purpose whatever. He had it ; had a right to get 
it ; and he kept it fairly ; but he had it. 

Mr. Randolph — But it is what his evidence is intended to 
convey — an impertinent reflection upon myself — that I al- 
lude to. 

Mr. Johnson — "Well, I think not. At any rate, that does 
not show that he is not entitled to credit when he has got the 
book. If there is anything in this answer that intimates an idea 
that that book was kept away from the Court for any improper 
purpose, it is what I cannot see. 

How came he to make the statement I have just read, may 
it please your Honors ? Why, he had produced the books, or 
rather they were produced, and he was called upon to testify 
to their authenticity. After Mr. Peachy had got the books 
before him, and proved by his testimony, as far as possible, 
their authenticity, Mr. Peachy asked him, Where did you get 
them ? He then gives the answer I have read. 

Mr. Randolph — Why did he not stop there ? 

Mr. Johnson — Because he did get them — one of them from 
Mr. Randolph. Suppose he said he got them from me ; it 
would not be true. He said he got them from Mr. Randolph's 



74 

possession, because they were in a safe in his office — properly 
there. The counsel cannot imagine I impute any improprioty 
to him. 

Me. Randolph — No. I speak only of the witness. 

Me. Johnson — I am speaking of the witness too. I never 
saw him until I came here; and I have no right to speak of 
him, except so far as the record speaks of his character. My 
friend, Mr. Eandolph, comes to cross-examine him ; and then 
he asks him, (page 2664) : 

Q. 26. You have said that you obtained one of these books 
(viz : " Correspondence with the Department of State,") from 
me, at my office. How many of the seven letters you have pro- 
duced were copied from that book, and which of them ? 

A. Two. One is dated " Monterey, California, May 4th, 
1846, addressed to the Hon. James Buchanan, Secretary of 
State, City of Washington." The other is addressed to the 
same person, dated " Monterey, March 5, 1848." 

Q. 27. These two letters ought to be found in the State 
Department at Washington, ought they not ? 

A. They ought. 

Q. 28. Have you never seen them printed, officially, among 
Senate or Executive documents, or both ? 

A. I don't recollect of having,seen them. 

Q. 29. Now, what was the object of your particularity in de- 
tailing the circumstances and manner of your obtaining that 
book, containing the correspondence of Mr. Larkin with the 
State Department, from me in my office, as in answer to ques- 
tion 10th ? 

A. Simply to answer the question by the counsel for the 
claimant. 

Question 10 is in the direct examination; what I have just 
read. 

His reply to that cross-interrogatory is : — " Simply to an- 
swer the question by the counsel for the claimant." 

It makes no difference where it came from. It came from 
somebody. What does it prove ? It proves the authenticity 
of all we rely upon. 

Me. Randolph — Certain letters are enumerated in that 



75 

question (26). Two of the letters are found in the book of 
which you are speaking. There are certified copies from the 
State Department, already in the record, of those two letters. 
They are also in the public document of the Senate of the 
United States, now before Mr. Benjamin; and those are the 
only two letters that upon examination your witness finds in 
the book. 

Mr. Johnson — He examined only a copy from the book. 

Mr. Randolph — My question is: Which did you get from 
the book ? supposing he copies or produces all that is in the 
book. That is the impression conveyed to my mind by the 
answer. What I object to now is, that upon his authority and 
no other, when the question has been put to him directly about 
that book, and he produces but two letters from it ; the book 
shall now be produced to show others. 

Mr. Johnson — My brother says the letter of the 23d of 
April has been put there afterwards. 

Mr. Randolph — I further say that production of those let- 
ters after that evidence^is in confirmation of what I said in the 
beginning, that it was a piece of impertinence on the part of 
the witness to go into particulars. 

Mr. Johnson — I do not suppose the witness had anything 
to do with our letter, improperly put in as you say, and whether 
put there improperly or not, there it is. 

This book contains the official correspondence of the Con- 
sulate. This letter (of the 23d of April) is preceded by some 
business in relation to the Consulate, and is succeeded by letters 
to other persons, relating to the business of the Consulate, all 
in their order of succession and dates. That could not be un- 
less the whole book was rewritten, and a forged transcription 
made of all the letters to be found in the original books ; but 
it is admitted to be original, and is so introduced. The counsel 
is greatly mistaken if he supposes we rely on that book for 
anything improper. We have a right to rely on that book 



76 

when the witness speaks of the letter of the 23d of April, which 
he finds amongst other letters produced, the authenticity of 
which is not disputed because produced by the young man, 
executor of his father ; and if we find the same letter in the offi- 
cial correspondence between the Consul and the Department at 
Washington, the authenticity of the correspondence is beyond 
all doubt, because a great portion of the correspondence is to 
be found in the archives at Washington. 

JSTow, nobody says Swasey is not entitled to be believed. 
What did Mr. Justice Hoffman say, in commenting on the tes- 
timony of Birnie in the injunction suit? Why, your Honor 
said you must credit it, and said it on the clearest principles of 
law, there being nothing on the face of his testimony so far in- 
credible as to furnish positive evidence of its falsity. Your 
Honor said, and I state it again, although wholly unnecessary : 
" He stands impeached by any witness called up to disprove 
the truth of the facts he states, or to prove that his general 
character is such that credit cannot be given to his testimony." 
That is Swasey's case. If he is not entitled to credit in Courts in 
California, let those who know it come forward and testify. But 
nobody has come. Standing uncontradicted and unimpeached, 
he would be entitled, even if not confirmed, to absolute credit ; 
and when not impeached or contradicted, and there is nothing 
in his conduct to awaken doubts as to the accuracy of his tes- 
timony, your Honors are bound — for you have the means to 
do it — to protect the witness, for it is the duty of the Court to 
protect witnesses as well as counsel. Your Honors are bound 
to look at such evidence before you as shows, that in any par- 
ticular instance in which he is impeached there is no ground 
for the impeachment. That evidence is to be found in what I 
have just stated: that those letters of which he is testifying, 
were to be found in all the books of the Consul. 

Mr. Randolph — What I wish to say, is this : That under 
the same- circumstances, when a witness put on the stand, with 
two books before him, produces letters out of the one book, not 
in the other, if I had been on the other side I should have 
adopted the course of the counsel who opened the case, referred 



11 

and relied only on the book which the witness produced, when 
referring to those letters. 

Mk. Johnson — May it please your Honors, I am replying 
to the counsel for the Government, who has, on the authority 
of these letters, attacked the credit of the witness. If it is his 
duty to impeach him, it is my duty to defend him. I desire to 
see justice done. And I invoke the Court, when a witness is, 
without sufficient ground, impeached or attacked, to stand up 
and say that, so far as your Honors know, he is entitled to 
credit, and to hold a position among his fellow-men without 
reproach. I have done with him. 

Well now, may it please your Honors, if all these facts are 
such that the Court cannot doubt, the only question that 
remains is : Do they constitute a title in the sense of the Act of 
1851? Now, my brother Kandolph has told your Honors 
that, with reference to the construction of that Act of 1851, we 
are confounding things entirely independent of each other. 
Title, he says, is one thing, the subject to which the title refers 
is another thing. We concede it. Land is one thing, the doc- 
ument by which you are to make out our right to stand upon 
the land, is another thing. He told us : "A camel carries bur- 
den, so does a horse ; and a camel is not a horse, nor a horse 
a camel. A camel carries burden, and so does an ass ; but a 
camel is not an ass, nor an ass a camel." 

We might have carried the illustration further. An ass 
brays and makes a monstrous sensation, signifying nothing. 
A man talks and makes a monstrous noise, signifying nothing. 
Yet a man is not an ass, nor an ass a man. 



Mr. Kandolph — V ery frequently he is. 

Me. Johnson — You may say that. I have no experience 
that way. I had not the slightest idea of applying it to you ; 
or the slightest idea of applying it to myself. I am not so sure 
but I had somebody else in my eye [tapping Mr. Billings on 
the shoulder]. 

Now the question, under that Act of 1811, is — what is it 



IS 

that your Honors are to deal with? What are you to confirm? 
You are not to deal with lands in the abstract ; you are not to 
confirm the lands. Nature has done that. You are to deal 
with a claim to lands. What does that involve? The title to 
the lands. You are consequently to confirm the claim — to con- 
firm the title. Whether the claim be of one interest or another 
interest, is perfectly immaterial. The only question is, has the 
particular claimant, as against the sovereignty of the United 
States, a right to the possession of the land, at the time when 
you are called upon to give him that right as against the Uni- 
ted States ? That is all. The extent of the right — whether it 
is to last one year, or two years, or a thousand years, or for- 
ever, to descend to his heirs in succession as long as he shall 
have heirs, and then to revert to the Government of which he 
may be a member, after his whole lineage shall be exhausted — 
is perfectly immaterial. Has he a right now? and the Court 
is called upon now to decide whether he has, or has not such 
right. Has he a right to stand upon what is asserted to be 
public domain ? What does that depend upon? Has he, as 
against the public, a claim authenticated by title which the 
Court is bound, the public is also bound, to respect ; a right, 
as against the public, to hold the lands ? 

My brother considers this Act of 1851, as if it were confined 
entirely to fee simple claims ; or, to speak more correctly, to 
claims for fee simple interests in lands. Why, to give such an 
intention to the act, you will have to interpolate into the act, 
those words. The extent of the interest is not defined or de- 
scribed by the act. The language of the act in connection with 
the treaty of the 8th of February, 1848, is : Any claim derived 
by any title from the Government from whom the United States 
obtained the cession of the lands. Well, then, may it please 
your Honors, if there existed in behalf of this claimant a right, 
as against Mexico, to stand upon this mine to the extent of its 
pertenencias ) and to the extent of 3,000 varas, or to the extent 
of two leagues, by any title derived from the Government of 
Mexico, which that Government in conscience must have re- 
cognized and respected ; so much of what was public domain, 
to the extent of the interest so convej^ed by the antecedent 



79 

owner to the individual proprietor, ceased to be public domain 
was not public domain, at the time of the treaty ; not being 
public domain could not, by force of treaty, have been con- 
veyed by the Government of Mexico to the United States ; 
since it was impossible for that Government to convey that 
which it had not. 

Well now, my brother supposes — and his whole argument 
is fallacious unlesss that supposition is true in point of law — 
two things. One of them is a fair subject for investigation I 
admit. In the other, he takes the ground taken by Mr. Com- 
missioner Thompson in his dissenting opinion : That under 
the law of Mexico, at the time when this right was acquired, 
and at the moment when the Treaty of Guadalupe Hidalgo 
was negociated and ratified, the mining titles — for this is but 
one of all the mining titles — were simply licenses, which it 
was in the power of the Government of Mexico at any time to 
abrogate ; which, as against the Government of Mexico, con- 
stituted no claim at all ; which, as against the Government of 
Mexico, made the holder of the mine but a tenant at will, just 
as those citizens of California who are now digging over its 
mountains, and obtaining in its valleys the gold, are said to be 
tenants at will of the United States, having no legal right. 
But to that extent, my brother has not gone. Mr. Commis- 
sioner Thompson says, that there is something in the nature 
of our institutions which rendered the conveying of interests in 
these mining titles, impossible. (I do not use his words.) He 
considers the interest which the actual possessors of the mine 
have, as against Mexico, under these titles, as a mere political 
institution, an assertion of the sovereignty, suited to the form 
of government which Mexicans were living under at that time; 
but which failed after the cession, because unsuited to the form 
of government under which we were living at the time of the 
cession. 

Now, as to both of those suppositions, a word or two. Mining 
titles in Mexico, such as Mexico could take away at any mo- 
ment 1 Mere interest, depending upon the will of the grantor; 
good only as long as that will continued unchanged ! Con- 
veying no interest to the tenant; no possession binding the 



80 

conscience of the grantor not to dispute it ! Governed by no 
law obligatory upon the grantor, without the pale of legal 
remedy ! 

Why, we say that by the ordinances under which Mexicans 
lived, these mining titles were carefully issued and these mining 
rights most religiously respected. 

We say that commentators after commentators have ex- 
hausted their learning in commenting upon these several ordi- 
nances, for the purpose of showing what the right of the citizen 
was ; how it was to be acquired, how it was to be determined. 
We say, that they tell us that is inheritable ; liable to be sold 
for the payment of debts ; alienable ; devisable. Who ever 
heard of an estate at will descending to the heir-at-law ? Who 
ever heard of a tenant at will having the authority to dispose 
of the estate, by deed ? Who ever made sale of an estate-at- 
will, or sold it for the purpose of discharging debts of the 
tenant ? Who ever heard, that at the death of the tenant, 
that of itself did not determine the will ? 

The Supreme Court of the United States take a very differ- 
ent view of the effect of these ordinances. I read as part of the 
decision — to be found, I think, in the brief of my friend on the 
other side — in the case of Chouteau vs. Molony, reported in 16 
Howard, pages 229-231 : 

Spain, at all times, or from a very early date, acknowledged 
the Indians' right of occupancy in these lands, but at no time 
were they permitted to sell them without the consent of the 
King. That was given either directly under the King's sign- 
manual, or by confirmation of the Governors representing him. 
As to the mines, whether they were on public or private lands, 
and whether they were of the precious or baser ores, they 
formed a part of what was termed the Royal Patrimony. They 
were regulated and worked by ordinances from the King. 

Again : 

By the law of the Partida (Law 5, Title 15, Partida 2, Rock- 
well. 126), the property of the mines was so vested in the King 
that they were held not to pass in a grant of the land, although 
not excepted out of the grant; and though included in it, the 
grant was valid as to them only during the life of the King who 
made it, and required -confirmation by his successors. 



81 

* * * By a second ordinance of Phillip, all persons, na- 
tives and foreigners, were permitted to search for mines. It 
was declared that the finders of them should have a right of 
possession and property to them, with a right to dispose of 
them as of any thing of their own, provided they complied with 
the rules of the ordinance, and paid to the crown the seignor- 
age required. 

And again : 

He (the King) grants them to his subjects in property and 
possession, in such manner that they may sell, exchange, pass 
by will, either in the way of inheritance or legacy, or in any 
other manner to dispose of all their property in them, upon the 
terms they themselves possess them, to persons legally capable 
of acquiring. * * * The right of Indians to work the 
mines, upon their own account, was at one time questioned. 
It was determined that they could do so. (Law 14, Title 19, 
book 4, Collection of the Indies, Eock. 137.) And the mines 
discovered by Indians were declared to be, in respect to bound- 
aries, on the same footing, without any distinction, as those 
worked or discovered by Spaniards. Besides the other privi- 
leges secured by this ordinance to the owners of mines upon 
the public lands, they had the right to use the woods on moun- 
tains in the neighborhood of them, to get timber for their ma- 
chines, and wood and charcoal for the reduction of the ores 
(Kockwell, 82, sec. 12, ch. 13). Besides the privileges just 
stated, they were exempted from a strict compliance with the 
ordinance in respect to the registry of their mines. Indeed, 
every indulgence was given to them. Much care was taken to 
preserve for them their property in mines, and to give them the 
means of working them. 

The King not only conveys to them a property in the mines, 
but, in the execution of a policy recommended to Spain by the 
colonies throughout all time, he is anxious that they should be 
encouraged in the discovery, and facilitated in the working of 
the mines. They could have the money or the means with 
which to manage and improve their property in the mines. 

And now, may it please the Court, before you take the recess, 
let us see how the United States themselves, view it. And 
this you are bound to take notice of. 

Property in mines is not under the protection of the treaty ! 
Property in mines is not intended to be observed and protected 



82 

by the force of the Act of March 3d, 1851 ! Is that the view 
taken by the United States ? They have got Arizona. How- 
did they get it ? By cession. "What rights have they in the 
mines now in Arizona ? Have they, as against anybody who 
has obtained title, whatever that might be, under the laws of 
Mexico, preceding the cession, the right to take the mines out 
of the hands of such individuals ? Why, see what the Gov- 
ernment are now doing with respect to New Mexico. I refer 
you to the recent instructions of the Commissioner of the Gen- 
eral Land Office. Not having before me an official copy, I will 
read an abstract from a morning paper (the " Alta California.") 

The Commissioner of the General Land Office, (Hon. Joseph 
S. Wilson), has dispatched important instructions to the United 
States Surveyor-General at Santa Fe, New Mexico, respecting 
mines. Parties had presented to the Surveyor-General pa- 
pers claiming mining rights in virtue of " denouncement." 
The Commissioner refers to the mining system of old Spain, 
as transferring to Mexico after her separation from the parent 
country, in which rights were admitted by the Mexican Eepub- 
lie to work the mines upon discovery or denouncement. He 
shows that that system was not recognized by the laws 
of the United States, and orders the Surveyor-General to 
observe the policy which obtains in California, as not exten- 
ding subdivisional lines of survey over either the mineral lands, 
or lands unfit for cultivation. He instructs the Surveyor-Gen- 
eral that his duty in regard to claims is restricted to the recep- 
tion of such only as are lawfully received from Spain and 
Mexico prior to the acquisition of the country by the United 
States, and the reception of donation claims under the laws of 
the United States. 

And if prior, respect them ! Why ? The United States by 
virtue of the treaty or by conquest, got no right to inter- 
fere with them. The principle of universal justice, recognized 
now by the law of nations, prohibit it. Those laws of Mexi- 
co with reference to mines, made the mines private property. 
And the honor of the nation, the good name of the nation, is 
now pledged in the face of Christendom to secure to those who 
had claims to mines, fairly existing by virtue of Mexican law, 
antecedent to the cession of this territory — then Mexican — to 
the United States. Such titles cannot be acquired now, I ad- 



83 

mit. They are inconsistent with the policy of the United 
States. With reference, therefore, to mines undiscovered, or 
to mines abandoned and now a part of the public domain, or 
which have since become a part of the public domain of the 
United States, no individual proprietor can, by authority of 
Mexican law, or by observing the usages of Mexico, acquire 
title. 

But if in any particular case, by means of these laws, ordi- 
nances, or usages, there were, on the 8th of February, 1848, a 
title in any Mexican citizen, or anybody else, to work mines 
within the limits of the territories ceded by force of the treaty 
to the United States — the hands of the United States are bound 
as an honest nation, in the face of the world, to leave them un- 
harmed, to confirm them. 

They have passed an act — 3d of March, 1851 — with that 
view. They have constituted a tribunal, supposed to be com- 
petent to decide justly on all such instances. More than that, 
they have given appeal to the District Court, in which they 
have all confidence. Supposing it barely possible that the 
District Court might not satisfactorily decide in all cases, they 
have given an appeal to the Supreme Court of the United 
States; and when they get there the Supreme Court say that 
such a controversy is not to be conducted in any contentious 
spirit, but on large, elevated views of national morality ; that 
all such contracts as were fairly binding on the conscience of 
Mexico are to be equally obligatory on the conscience of our 
own Government. Thank God ! they have a conscience. 

In the language of the Supreme Court in another case : 
" What will bind the conscience of a King, therefore, will 
surely bind the conscience of nations." The conscience of the 
King was bound when Mexico was a kingdom. The conscience 
of the dictator was bound, when Paredes was dictator. The 
conscience of Mexico, as a Republic, was bound, when, on the 
8th of February, 1848, she ceded the territory which included 
this mine, to the United States. Good faith and good name, 
honor and justice, alike demand that the United States should 
be glad, aye, take an honest pride, through their judiciary, in 
securing by every means which they could procure for the 



I 



84 

purpose of accomplishing the object, all such titles antecedent, 
and making them, against the United States, as effective and 
good to every extent as they would have been good against 
Mexico. 

Mr. Kandolph — I simply wish to observe to Mr. Johnson, 
to save the trouble of replying to that point, that I am not par- 
ticularly aware at this moment of the positions Mr. Commis- 
sioner Thompson has taken on this argument that mines duly 
acquired were not property, nor their possessors but tenants at 
will. My views on that subject are those of Chief Justice 
Taney, who says : u And whether there be any mines on this 
land, and if there be any, what are the rights of the sover- 
eignty in them? are questions which must be decided in another 
form of proceeding, and are not subjected to the jurisdiction of 
the Commissioners or the Court, by the Act of 1851." That 
was my position. 

Mr. Johnson— I understand that. I will refer to it here- 
after. 

[The Court took a recess.] 



Mr. Johnson — It is objected, may it please the Court, that 
the construction for which we insist, of the Act of March 3d ; 
1851, is erroneous, because of the provision in the same act for 
the issuing of a patent to a claimant whose claim might be con- 
firmed. And my brother upon the other side seems to sup- 
pose that there is in that provision a clear indication of the pur- 
pose of Congress to exclude from the operation of that act a 
title of this description. Now, I have two answers to make to 
that: First, that all that that section in the act provides, is 
that upon the claims being confirmed, a patent shall issue. He 
assumes that it is to issue in the ordinary form, because there 
is no provision under the laws of the United States, passed ante- 
cedently to the Act of 1851, for the issuing of any other kind of 
patent ; and as the patent in an ordinary form, conveys, it is 



85 

claimed, the fee simple in the land, it never could have been in- 
tended by this act — which provides for a patent — that a mining 
title should be confirmed, because a patent of that description 
would give more than is necessary for the security of a mining 
title, 

Now, it must be very clear that the treaty covers a title of 
the miner in his discovery. If we are right as to this property 
title claimed to mines, you are to construe the Act of 1851, so 
as to make it embrace this case as well as every other case in- 
volving claims to real estate. And when the sections of the 
act which precede the particular section upon which my brother 
relies, construed by themselves, would cover a mining title, as 
well as any other title, when you come to consider the meaning 
of the subsequent section in relation to a patent, which upon 
its face does not provide that it is to give a fee simple, but 
merely directs that a patent shall issue to the claimant, you are 
then to say that secures only such a title in lands as has been 
confirmed to the claimant, whether it be allodial, fee simple or 
conditional. 

The other answer to that, is this: The Court have nothing 
to do with the execution of that provision stated, which 
relates to the issuing of a patent ; nothing whatever. Your 
duty is devolved upon you by force of the eighth sec- 
tion. That duty is, that upon any claimant presenting to you 
a title, derived from Mexico, to any interest — as we con- 
strue, to any land embraced within the treaty of cession, — you 
are to confirm it. If the Legislature of the nation, in that par- 
ticular act, have not provided a means by which some other 
documentary voucher of that title is to be issued, as a patent 
for example, the}' will provide for it hereafter ; and the claim- 
ant will stand upon the title which he will have by force of 
your confirmation, your decree. Nothing can be plainer than 
that. And if we are right in the construction we give when 
we claim that the act before you covers this description of pro- 
perty, then it is perfectly evident that, if Congress have not 
provided a mode by which that title, when confirmed, is to be evi- 
denced by some documentary evidence in Washington, it will 
be the duty of Congress hereafter to provide such a voucher. 



86 

"We say, in behalf of the claimant, that, whether such a voucher 
can be issued now or not, under that law, to give us such evi- 
dence of that title, we are satisfied to stand upon your Honors' 
confirmation of the title under the very words of the act giving 
you that authority to act upon and to confirm the title if you 
think it a legitimate one. 

My brother upon the other side, now and before, and the 
dissenting Commissioner, seem to suppose that there was to be 
found in the decision of Chief Justice Taney, in the case of 
Fremont, a clear indication that in the judgment of that Court, 
mines are not involved. That, I submit to the Court, with 
sincere respect for the judgment of the counsel as well as the 
dissenting Commissioner, is an entire misapprehension of that 
part of the opinion of the Chief Justice. The case before the 
Court was one involving simply the right to the land ; that is 
all. A grant had been made to Alvarado, and of that grant 
Colonel Fremont had become the assignee. His claim was re- 
jected by the District Judge, for reasons of very great weight. 
They were reasons supposed to be entirely destructive of the 
title, fatal to the title, in the judgment of the several Judges of 
the Supreme Court of the United States. The Chief Justice 
took a different view. Amongst other objections, an objection 
urged by the District Judge, in his opinion below, to the con- 
firmation of that title, and taken by Mr. Attorney General 
dishing in the Supreme Court — was this : That in Mexico 
there existed at the time of the cession to the United States, a 
right to the mines within the land granted to Alvarado ; and 
consequently that if a patent issued — as it was to issue, in the 
event of Alvarado's title being confirmed to Colonel Fremont 
as the assignee of that title — as there was no distinction in the 
United States between the land itself, strictly speaking, and 
the mine, Colonel Fremont as the assignee of Alvarado, 
would obtain more than Alvarado could have obtained, or 
Colonel Fremont could have obtained as that assignee, under 
Alvarado's grant from Mexico. 

The grantee of the land holds an interest in the land simply 
as such, for agricultural purposes. If there is found in this 
land included in the grant, minerals, those minerals belong 



87 

to the Government ; not by force of any contract between the 
grantee and the Government, but "upon the ground that they 
are not under the laws of Mexico, transferred to the grantee. 
They remain still in Mexico, notwithstanding her grant of the 
surface. Well then, as Alvarado, if he had asked Mexico to 
confirm that grant, there having been no cession of the terri- 
tory to the United States, would not have obtained the mines, 
it was impossible to confirm the grant by the United States ; 
since the effect of that confirmation followed up by a patent of 
the United States, would be — there being no distinction as was 
alleged, between lands and mines in the laws of the United 
States — to transfer to Fremont as the assignee of Alvarado, a 
right to the mines, which were not transferred at all by Mexico 
by her grant of the lands. 

And there was, apparently, force in it. See what is done, 
may it please your Honors. The question is yet to be tried. 
Fremont is now in possession on the mines, under that con- 
firmation. He has got his patent. But Mexico did not give 
him the mines. That is very certain. The grant from Mexico 
did not give him the mines. How does he get them ? He 
gets them, if he is entitled to them at all, by force of his patent 
from the United States ; and as that patent is issued simply to 
confirm what Mexico gave, it will be a question hereafter, 
whether those mines do not still belong to the UnitedsStates 
by force of the cession of the territory from Mexico to the 
United States, at a time when Mexico, as between herself and 
Alvarado or all claiming under Alvarado, was the proprietor 
of the mines. That question will come up, I suppose, to be 
decided. I have a very distinct impression as to what the de- 
cision will be, but it is unnecessary to mention it now. 

Mr. Chief Justice Taney, speaking for the majority of the 
Court who coincide in this opinion, says (p. 165, 17 Howard): 

In relation. to that part of the argument which disputes Fre- 
mont's rights, upon the ground that his grant embraces mines 
of gold and silver, it is sufficient to say that, under the mining 
laws of Spain, the discovery of a mine of gold or silver did 
not destroy the title of the individual to the land granted. 
The only question before the Court is the validity of the title, and 



88 

whether there be any mines on this land, and if there be any, 
what are the rights of the sovereignty in them, are questions 
which must be decided in another form of proceeding, and are 
not subjected to the jurisdiction of the Commissioners, or the 
Court, by the Act of 1851. 

That is to say, that when a claimant presents himself before 
the Commissioners and afterwards before this Court, asking to 
have confirmed to him a title granting lands simply, you can- 
not try the question, whether there exists in anybody else by 
title derived from Mexico — whether that somebody else be the 
United States, or an individual proprietor — a right to the 
mines as contradistinguished from the land. That is to be 
decided hereafter. It is no issue involved in this case, as be- 
tween the United States and the claimant to title under the 
grant to lands ; because, whether there be mines or be not 
mines discovered, at the time of the grant or subsequent to the 
grant, is perfectly immaterial. The question submitted to the 
Court in such a case is, Is the grant of lands valid ; and upon 
that question, I read again the language of Chief Justice Taney, 
in deciding it : 

It is sufficient to say that under the mining laws of Spain a 
discovery of a mine of gold or silver did not destroy the title of 
the individual to the land granted. 

That is all that they did, may it please your Honors. They 
went on to confirm the grant of Alvarado. Why they made 
it, what were the objections to the validity of that grant in 
other respects, how far they bear on the case — I shall have 
occasion b^-and-by to examine ; and I refer to it now to estab- 
lish what I think is true, that my brother on the other side has 
misapprehended the opinion of Chief Justice Taney in that 
case. If there had been title derived from Mexico by Castillero 
or anybody else under the mining laws of Mexico, then that 
title must have been respected, because the Supreme Court say 
in the passage from which I have read you (16th Howard): 
"By the ordinances of 1783, in force, such a title as that was 
property, alienable, devisable, inheritable, and responsible for 
debts." 



89 

"Why, this grant of the Mariposa region, including the im- 
mense mineral wealth which has since been discovered, which 
startles or rather surprises everybody, was not known at the 
time when Colonel Fremont bought, not' even known to him- 
self. The enterprise which he has exhibited in common with 
almost all the inhabitants of California, has brought Nature's ■ 
secret to light. Whether he is to have the benefit of that dis- 
covery which he is now practically enjoying (and which I 
trust he may ever enjoy), will depend upon what are the laws 
as between the grantee of the lands secured in his title by force 
of a patent issued under the Act of 1851, and anybody who 
shall attempt to get a title to the mines by any other proceed- 
ings. The question, as your Honors may have seen, if you at- 
tended to it in this bearing, has been met by anticipation of the 
authorities at Washington. The Commissioner of the Land 
Office acted, of course, upon the authority of the Executive 
Government in the instructions which I read to you just now. 
It is stated that, however true it is that the mining laws of 
Mexico, in respect to mining titles, are to be respected when 
there is a title derived under those laws anterior to the ces- 
sion, yet such laws as are inconsistent with the existing policy 
of the United States as evinced by present legislation, are not 
to be regarded. You are, therefore, not to regard any de- 
nouncement or attempted denouncement, any registry or at- 
tempted registry to procure a title to the mines, as against the 
United States or anybody else in contradistinction to the title 
to the lands. 

We give but one title under the laws of the United States. 
We grant but one title in the absence of particular legislation 
directing a different kind of grant. The title we give and the 
title we grant, without such special legislation, is a title to the 
land and everything in it, be it minerals, or be it clay, or sand, 
or anything else which constitutes the land. 

So that I think it very clear, may it please your Honors, 
that there is nothing in that opinion, that part of the opinion — 
if there be anything anywhere else in the opinion — which bears 
on this part of the argument, which assists to the conclusion which 
my brother on the other side of this case desires you to come. 



90 

A word or two made in relation to the validity of the title, 
or rather in relation to the character of the estate obtained by 
the title, and I shall have done with this branch of the argu- 
ment. 

"Why, so far from its not being considered as property, it was 
the preferred property in the estimation of Mexico. She lived 
by it. It was one of Nature's staples. It took the place of 
American cotton, tobacco and grain. To us the earth yields its 
fruit which enters into the immediate wants of man for susten- 
ance. It is the instrument, the means of wealth, because it 
produces money where there is a surplus. But with Mexico, 
her mines were valuable as being, so to speak, the granaries of 
gold and silver ; and the value of these gold and silver miner- 
als was important in the estimation of her interest and her 
glory. To promote both, and to beneficially develop the gold 
and the silver, she cherished the discovery and the working of 
quicksilver mines. Is it possible, may it please your Honors, 
that when that was her policy, when her policy depended upon 
individual enterprise which she had no means of advantage- 
ously carrying on herself, that she would be close or parsimoni- 
ous in holding out inducements for such discoveries ? These 
secrets of Nature were hid in her mountain ranges, stretching 
from one end of her territory to the other. Her valleys, her 
rivers were supposed to be the receptacles of this treasure. 
How are they to be discovered? By individual enterprise. 
How is that individual enterprise to be obtained ? How is it 
to be promoted ? By holding out to the individal engaged in 
the work the prospect of gain. How is that done, according 
to her laws ? " Make the discovery and we pledge the honor 
of the nation that, that being done, if you will observe certain 
directions, in order to guard Mexico from any injury in any of 
her rights, or defeat in any of her hopes for which she desires 
the discovery to be made, you shall have for all time, undis- 
turbed as against us, 'property in the mine, which you can give 
to your children, appropriate to the payment of your debts, or 
give to anybody whom you choose." 

Well then, prima facie, we force an acknowledgment of our 
claims, without the production of any particular authority, 



91 

without going to these ordinances which my brethren on the 
other side have referred to with so much ability, — which 
my brother Benjamin, with the aid of his clear digest, has 
condensed in such a manner that your Honors, I am sure, will 
agree with me in saying that the whole law on the subject of 
mining, as far as the questions in this case render it necessary 
to look at it, are so perspicuously presented that it is impossible 
to doubt that the presentation is right. If you doubted that, you 
have references to the admitted authorities upon such matters, 
by which you can easily and fully test the accuracy of the con- 
densed statement. I say that it is unnecessary to go there. 

The well known historical policy of Mexico, to be found in 
these archives, to be found in general history, which almost 
everybody sees, which everybody certainly hears — if he has 
heard anything or listened to anything concerning the well 
known policy of Mexico, concerning her mineral wealth — 
leads irresistibly to the conclusion that those who assist her 
in her mineral developments, could obtain under her laws a 
right to hold such mineral wealth to her exclusion, so far as 
her laws provide in the premises. So holding, it is in the dis- 
coverer's hands, property. 

Now, if the argument on the other side is sound, it would 
practically lead to this result. This whole title was consum- 
mated before the possession of the United States, and of course, 
before the conquest. It had gone through all the forms of 
Mexican jurisprudence. The whole Government of Mexico, 
and every man and woman in it, so to speak, recognized the 
validity of the title. The ownership was declared. Now 
$900,000 have been expended in developing it. It has carried 
joy through the whole of Mexico. But the development has 
cost this enormous expenditure. It has not yielded a dollar. 
I am now assuming a case ; it has not yielded a dollar. It is 
about to yield. The holders of the title to it, which Mexico 
not only never dreamed of questioning, but which she could 
not question without violating her own honor, were just about 
to enjoy the benefits of their discovery, of their disbursements 
to make the discovery practically lucrative, and beneficial indi- 
vidually as well as politically. Mexico then is forced by the 



92 

United States — (because, in the language of Mr. Attorney Gen- 
eral, we made for her a most advantageous treaty — we only 
got California, that's all — she may thank her stars that we 
did not get all of her territory !) — Mexico is forced to come 
forward and repudiate her promise and her pledge. The Uni- 
ted States comes forward and says : We know all about it, the 
archives at Washington communicated to us the fact that the 
mine was discovered. The value of the mine was known, the 
expenditures were known. We know that as against Mexico 
you would have been permitted to hold on to the property and 
the revenues until you had recovered the amount of your dis- 
bursements, as long as it remained a source of profit and as 
long as it might lawfully descend, in the manner of other 
property, to your successors ; but Mexico has ceded this prop- 
erty to us by a treaty which we say is advantageous to her ; 
and now you must get off this property. We will have the 
benefit of your disbursements — we, the United States of 
America. 

Mr. Peachy, (interrupting) — It was proposed in the Senate 
to devote the proceeds to the building of a Pacific Kailroad. 

Mr. Johnson — It was proposed ? 

Mr. Peachy — That was the proposition. 

Mr. Johnson — Weil, I didn't know that anybody in the 
Senate had proposed anything like that ! A great manjr things 
are proposed in the Senate which do not strike everybody as 
the wisest plans in the world ! A great many speeches are 
made in the Senate, that are supposed to have some few intel- 
lectual defects! 

[Order was commanded in the court-room, many of the au- 
dience manifesting a disposition for loud laughter.] 

Mr. Johnson — (continuing) — "But let that pass!" Of 
course, I don't mean to be personal. Present company is 
always excepted. 



93 

It was proposed, you say, that the United States should take 
this mine, and with its revenues build a railroad from here to 
Texas ! Why, what an honest operation that would be ! 

Castillero and those who claim under him, Barron, Forbes & 
Co. (Eustace Barron !) and others, were the holders of the mine, 
and we ought to thank our stars that they were. If Mexico 
had not been aided by their means the mine must have 
remained what the God of Nature formed it in the beginning — 
nothing but an unexplored vein. Nobody could tell whether 
valuable mineral was there or not, except the Indians who 
occasionally rouge their faces with it ; in that respect anticipat- 
ing civilization. (Present company always excepted) ! 

[" Order " was again commanded in Court.] 

Now, may it please the Court, could the United States, with 
any propriety, or, I was about to say, decency, in the case which 
I have supposed, insist upon taking a mine developed by means 
of the wealth of Mexican citizens, under a treaty in which they 
promised and pledged their honor to observe all species of pri- 
vate property derived from Mexico ; knowing that by the laws 
of Mexico themselves, as between the private proprietor and 
Mexico, this property could not be appropriated to govern- 
ment use? Why, what does the treaty say ? It says that " the 
holders of property under Mexico shall have the like guaran- 
tees." I may not use the exact words of the treaty, but very 
nearly — a the like guarantees enjoyed by citizens of the United 
States." 

What are, amongst others, the guarantees furnished to citi- 
zens of the United States in reference to private property ? It 
shall not be appropriated for public use without full and ade- 
quate consideration paid before the appropriation. It is a prin- 
ciple now of universal justice, recognized by every free gov- 
ernment in the world, that private property cannot be taken in 
any other way, and cannot be taken at all except for a public 
purpose of a strictly legitimate character. The Government 
cannot take it from one individual and give it to another. The 
purpose for which it is to be taken is to be public. The indem- 



94: 

nity to the full extent of the value of the property so taken, is 
to be paid by the public to whose purpose the property is about 
to be appropriated. 

Is it possible, then, may it please your Honors, that when 
they agree to protect, by all the guarantees known to the Con- 
stitution of the United States, private property existing by title 
derived from Mexico, by any kind of title legally derived from 
Mexico, on or before the 2d of February, 1848 — to throw 
around it all the guarantees that belong to individual property 
acquired here under the laws of the United States — that they 
can take it for any purpose, except a public purpose ; or that 
they can take it even then without first paying the entire value 
of it ? And your Honors would be bound after such an attempt 
was made to issue an injunction to restrain the agents of the 
United States from touching the property. 

Mr. Randolph — Do you apply that doctrine to Berreyesa's 
ranch ? 

Mr. Johnson — I apply that rule of law to any property that 
is to be taken by the public for a public purpose. I do not 
know that the Attorney General intends confiscating Berrey- 
esa's ranch, or anybody else's ranch. He lets them stand un- 
questioned. 

All that I know, and all that I mean to say in this connection 
is, that this is "property" under the laws of Mexico, and inas- 
much as Mexico recognized it as property, and that the territory 
comes into the United States incumbered with this interest as 
property which, according to the plighted faith of the United 
States, is to be protected by the United States, with all the 
guarantees thrown around any description of property by the 
institutions of the United States. 

I leave the subject, may it please your Honors — that branch 
of the argument. 

I referred yesterday, at about the close of the sitting of the 
Court, to a point of fact as to the grant of the two leagues ; 
and here is the original paper before the Court for inspection. 

Your Honors will see in what in Spain they call the rubric 
to the signature — a private mark which, as I am given to 



95 

understand, is common to all official signatures. Here it is, 
may it please your Honors — [holding up a paper] — here is the 
original. It has a stamp at the head of it, showing the char- 
acter of the paper. 

I have before me, of the date of the 24th of March, 1846, 
another document, professing to have been signed by Castillo 
Lanzas, of the authenticity of which there can be no doubt. 

Now, your Honors will find, by comparing the paper of the 
one with the other, that the paper is identical ; and, by look- 
ing at one or two other archives in evidence before you, you 
will find that the paper used at the time when this grant was 
made — as is proven not only by this grant, for the authenticity 
of this being disputed, we cannot rely upon that as any evi- 
dence to prove all the papers in the archives of about the same 
date — are identical. The paper used before this time, that is, 
the paper used in the previous year, and which was now ex- 
hausted, bears a different stamp. 

[Mr. Johnson hands the papers to the Court.] 

His Honor, Mr. Justice Hoffman, in giving his opinion in 
the Limantour case, very properly relied upon the difference 
between the paper to be found in the archives at the period 
when the grant to Limantour professed to have been made and 
the paper upon which those grants were written. His Honor 
came to the conclusion — to which he was almost forced to 
come — that that fact of itself proved that the titles produced by 
Limantour were fraudulent, as contradistinguished from the 
genuine. 

Now, if the argument is a sound one — and no one can doubt 
that it is a sound one — it ought to operate both ways. If the 
difference between the paper in the Limantour case would lead 
you not only to doubt, but to come almost to the certain con- 
clusion, that Limantour's grants were fraudulent, the identity of 
the paper in the Lanzas grant with the paper used in the ad- 
mitted archives at the date of the Lanzas grant, should be 
equally conclusive evidence to show that the Lanzas grant is 
a fair and honest grant. 

The Government cannot use evidence of that sort merely for 



96 

the purpose of accomplishing their own ends. If they invoke 
the archives, as they did in that case, for the purpose of prov- 
ing that the particular grant in question was fraudulent, char- 
acterized in their hands as evidence of fraud, relying upon the 
difference of the paper when, in f that case, the archives are 
produced to tell a different story, to indicate wrong in the 
claim for title, it shocks all reason and all justice; it does vio- 
lence to all notions of right, to insist that we shall not, in this 
case, argue the truth of this title on a like basis — the precise 
similarity of the paper in the case before us. 

But, may it please your Honors, there is other confirmatory 
evidence about which there can be, as I submit, no sort of 
doubt. We have archives here. There were local bureaus, 
local departments, acting under the authority of Mexico, here 
in California. The existence of these authorities became neces- 
sary in order to enable Mexico to carry out her policy here. 
Everything could not be done in the City of Mexico. Local 
power has to be given. Who is to be dealing with the property 
belonging to her in California ? In California there might be 
discovered mines of inexhaustible wealth, of immense import- 
ance to her own prosperity. Her laws required that certain 
forms should be gone through with before individual titles 
could be secured in such mines, for her protection as well as 
for the protection of the grantee. She has two things in view: 
first, to encourage the discovery of mines ; secondly, to protect 
her own interests therein. In order to do both, she must have 
in the locality where the property may be discovered, authori- 
ties to superintend the execution of her laws, so as effectually 
to promote the object of securing herself as well as of securing 
to the discoverer the benefit of his discovery. She had "Al- 
caldes." She had no other judicial officials here at the time. 

We maintain, whether correctly or not, your Honor's will 
decide, that at that time — because there was no other local au- 
thority holding a judicial power competent to carry out the 
mining laws so as to secure to the discoverer his mining title — 
the Alcalde possessed that authority. 

I assume now, in passing, that in that argument we are 
wrong. That makes no difference in the view in which I am 



97 

now bringing the matter before the Court. Everybody sup- 
posed he had, or at least there was nobody who had that 
power, unless he had it. Now, we show that Castillero pro- 
ceeded before that Alcalde with all these titles, so far as it was 
necessary to have in the archives here the evidence of their 
existence. Those are all proved by the production of the 
archives. Are they so proved ? 

Here we have, may it please the Court, the original papers, 
proved by witnesses, as I will show you in a few moments. 
Now, I assume this to be an original [holding up a paper.] There 
is between the fourth and third lines, at the close of the paper, 
an interlineation, running the whole width of the paper, coin- 
ciding in length with the lines of the paper. Who put it there? 
Who put it there? We say, Castillero. When? Whilst he 
was here. When was that ? In 1846 ; on or before the 4th of 
April, 1846. Why ? We say that it must have been before 
the 4th of April, 1846 ; because, on that day he went away 
and has never returned. The proof is, that this paper remained 
in the archives from the time it was there deposited until it 
was produced here. 

Now, we say that this is Castillero's handwritiDg. Is it? 
My brother Randolph says, that with all the respect he enter- 
tains for the judgment of Mr. Hopkins, he must deny the as- 
sertion that this is Castillero's handwriting. Now, as far as 
my brother Randolph recollects, this handwriting is proved to 
be Castillero's only by the testimony of Mr. Hopkins, who 
says that he believes it to be the handwriting of the said Castil- 
lero. Mr. Hopkins thinks so: he believes it. Well, that 
proves nothing, except Mr. Hopkins' opinion. He never saw 
Castillero write. He judges from a comparison of signatures 
of the same description, and of writings which he understands 
to be the writings of Castillero. Comparing what he presumes 
to be the real writing of Castillero with this interlineation, he 
is brought to the belief that that interlineation is in the hand- 
writing of Castillero. 

But that is not all : my brother had forgotten that there was 
other evidence. Turn to page 3069 of the Transcript. Hop- 
kins, in his certificate dated Sept. 27th, 1860, says : 



98 

And that I think the first page of said document is in the 
handwriting of Andres Castillero ; and that the following in- 
terlined words, to wit — 

I won't read the Spanish that follows, for fear of shocking 
the classical ears of some of my friends, who fancy that they are 
particularly classical, so far as the Spanish is concerned. Mr. 
Hopkins quotes the Spanish. And what follows in this certifi- 
cate? 

—Found on the second page of said document, between the 
sixth and seventh lines, counting from the bottom of the page, 
I think are also in the handwriting of said Andres Castillero. 

Now, if you will turn to pages 3042, 3043, you will find this 
stipulation, to which Mr. Randolph affixed his signature. It 
is dated the 1st of October, 1860. It was filed on the 4th of 
October. 

" It is further stipulated and agreed that M. G. Yallejo will 
prove the handwriting of, and the signature to Exhibit Castillero 
No. 5. 1 ' This is a letter from Andres Castillero to Alexander 
Forbes, dated January 14th, 1847. But this is not all. I am 
now dealing with the interlineations on this document which 
is marked " Exhibit J. Y. No. 1, W. H. C," and the question 
who wrote them. The stipulation goes on : — " And it is fur- 
ther stipulated that General M. Gr. Vallejo will prove the hand- 
writing of Castillero in the parts of Exhibit J. Y. No. 1, W. 
H. C, which, in the written statement of R. C. Hopkins, he 
says he believes to he in the handwriting of said Castillero." 

Brother Randolph did not give any intimation at that time 
that he would not consider that to be true which was proven 
by General Yallejo. 

Mr. Randolph — That is another matter. 

Mr. Johnson — We told you at the time what we intended 
to prove. You were weak enough to sign this stipulation and 
we take the advantage of it. Of course the United States can 
say that our witness is not to be believed. But here is the agree- 
ment. We might have called up and examined General 
Yallejo. 



99 

Mr. Eandolph — I would not have cross-examined him. 

Mr. Johnson — I think that that is doubtful. 

Mr. Eandolph — I can refer you to a number of witnesses 
whom I did not cross-examine. 

Mr. Johnson — That is better. You are obliged then to 
come to the conclusion that the proof was so strong that you 
could not contradict it or explain it, or, by any sort of hocus- 
pocus, get clear of it. 

Mr. Eandolph — Or get over or under it ? 

Mr. Johnson — Yes ; and all that sort of thing ! When I 
have a great many things to say and little time to say them in, 
I bundle them all up in — " and all that sort of thing." I don't 
think that it was altogether right to entrap my brother Ean- 
dolph in this way ; I don't wonder that he is disposed to make 
some complaint ! 

Now a word or two on another point. 

These papers are all true. All that we say, is true. The 
mine was discovered. The mine was registered. It was reg- 
istered for the purpose of securing the title. It has been sold ; 
and the purchasers have bought and sold shares in it, upon the 
faith of that title. That which they have seen they believe. 
What have they seen ? What do they know occurred before 
the 2d of February, 1848 ? It is discovered, denounced, regis- 
tered, and efforts were made in Mexico to secure a title. Dis- 
bursements are made in Mexico on the faith of that title. 
What does the United States do ? We are now in a Court of 
Equity, in which the principles of equity are to govern. What 
does the United States know ? 

Communications made by Mr. Larkin, an officer of the Uni- 
ted States, to Washington, tell that Government that Castillero 
is in possession of this mine before the United States dreamed 
of acquiring California by conquest ! I say, the proper repre- 
sentative of the United States here, in California, long before 
the treaty of the 2d of February, 1848, by which we acquired 
this* country, in his official communications, on file in Wash- 



L -°fC. 



100 

ington, at the date of that treaty and long before, had informed 
our Government that Castillero was working this mine as its owner, 
that he claimed to be its owner, that he had acquired a right, inter- 
est or title to it under the mining ordinances under the laws of Mex- 
ico, just as any one else acquired a right or title to a mine anywhere 
else in Mexican territory ; and, moreover, that this mine was of 
almost incalculable value. 

Did Mexico interfere with his working, or deny his claim of 
ownership to this mine between the time of its discovery and 
the date of the treaty ? Oh, no ; that Government not only 
recognized and confirmed his claim of ownership, but also did 
everything in its power to encourage and facilitate his working 
this mine. And what does the United States now say with 
respect to such mining rights acquired prior to that treaty in 
New Mexico ? Our Government says, through its Commis- 
sioner of the General Land Office : " I do not interfere with min- 
ing titles acquired prior to the acquisition of the country ; they 
are beyond the power of the United States ; I only interfere 
with those who attempt to get mines in the ceded territory un- 
der and by virtue of Mexican laws now no longer in force 
there, and contrary to the laws of the United States!" 

But, it is said, although Castillero may have had a title in 
point of fact, he knew, or ought to have known, that he had 
no fully vested title in point of law, at the date of the treaty; 
and that although the United States knew at the date of the 
treatjr that he had a claim or pretended title to this mine, they 
knew or believed that that title was not a complete legal title. 
Is that to defeat the claim ? 

Your Honor, Judge Hoffman, in commenting upon a decis- 
ion of the Supreme Court, lays it down as a principle of law, 
too clear to be disputed, that where anything has occurred be- 
fore the cession, before the conquest, constituting an equity as 
against the Mexican Kepublic, it creates, as against the United 
States, an inchoate title which is to be confirmed by his Court 
under the provisions of the Act of 1851, because he is directed 
to be governed by the principles of equity/ 

And now the United States, with the knowledge of our dis- 
covery of this mine, of our working it, of our claim of owner- 



101 

ship under Mexican laws and usages, with the knowledge that 
Mexico permitted and encouraged all this — as is proved by 
their own archives at Washington, proved by the archives of 
the State Department, whose special function it is to negotiate 
treaties — the Attorney General, now, speaking in the name of 
the United States, with a knowledge of that fact, wishes to 
stand, — not upon the treaty but upon words in the projet of 
the treaty which were stricken out by the United States, or 
upon the words of the Mexican Commissioners who negotiated 
that projet of a treaty, saying that no grants had been made 
subsequent to the 3d of May ! 

It is to be supposed that the contents of these archives were 
known to the officers of our Government who were charged 
with negotiating and ratifying that treaty* And with this 
knowledge, what did they do with respect to this tenth section? 
They struck it out, thereby saying, that if any grants had been 
made subsequent to the 3d of May, such grants were to be put 
upon the same footing as if no such assertion had been made 
by these Mexican Commissioners. What faith did they put in 
the assertions of these Mexican Commissioners? Did they 
attempt to limit the honor and good faith of the United States 
towards private persons by any stipulations based on these as- 
sertions ? And Mr. Marcy and Mr. Cass, have they attempted 
to bind Mexico by this rejected part of this projet of the trea- 
ty? Did they attempt to hold Mexico to an account for erro- 
neous statements of her Commissioners — statements which they, 
from the evidence in their own offices, knew to have been er- 
roneous ? They were honest mea, may it/please the Court. 
Great men were they ; and what is still better, honest men — men 
alive to the honor of their country ! 

Again, suppose these Commissioners had stated what they 
knew was untrue ; should their false statements operate to de- 
fraud Castillero, and those claiming under him, of their rights 
in this mine ? Why, there is not a Court of Equity which, as 
between individuals, would not at once declare that a party 
standing in relation to property of this description in which 
the United States stand, according to the evidence here offered 
by the United States, had no right to interfere with Castillero's 



102 

title, which would not, by injunction, prohibit such a private 
party from attempting to interfere with such a title. 

" Whatever," in the language of Mr. Justice Baldwin, in 
pronouncing a decision in another case in the Supreme Court : 
" whatever," in the language of Mr. Justice Hoffman, in pro- 
nouncing his decision in several of these land cases, " has oc- 
curred in the ceded territory prior to the cession, binding the 
conscience of the antecedent sovereignty, binds us." 

God forbid, says Mr. Justice Baldwin, that the conscience of 
the Eepublic is not as pure as the conscience of a Monarchy I 

I might, therefore, as far as the exigencies of this case are 
concerned, surrender to the objections to the legality of that 
title, — admit that the whole proceedings are illegal. Mexico 
had no right to rely upon that, may it please your Honors. 
"We went upon it, believing that they were correct. Mexico 
told us by her own conduct that they were correct. The con- 
duct of the Alcalde, giving us judicial possession, was affirmed 
in all its parts. She granted to us two leagues, congratulated 
her people that the mine had been discovered and was about 
to be developed by these very men, and represented it to the 
Congress of Mexico. It carried joy, as far as such a discovery 
could, to every public man in the State. She never has at- 
tempted to forfeit it. 

And what says the Supreme Court of the United States, in 
the case I read your Honors yesterday for another ^purpose ? 
(Case of Fossatt, 21 Howard) : 

The object of this inquiry was not to discover forfeitures or to en- 
force rigorous conditions. The declared purpose was to authen- 
ticate titles, and to afford a solid guarantee to rights. 

If Mexico had a conscience, which prohibited her from en- 
forcing forfeitures, it is not the purpose of the United States 
to do that which Mexico would have been ashamed to do ! 

And yet that is precisely what the United States are now 
attempting to do. What is my brother's objection, amongst 
other things, to the validity of this title ? That it is not vested. 
It is not a case of forfeiture, he says ; it is a failure to fulfill 
the conditions by which the title itself is to vest originally, 
conditions precedent. I illustrate it by applying his argument 



103 

to part of what has been done. In order to secure a fall de- 
velopment of the mine, you say that it really is to be worked, 
and that the public is to get the benefit of it. It is made the 
duty of the local officer, before he grants juridical possession, 
to see that the well, which the law prescribes, is of certain di- 
mensions in width and depth. The width is prescribed, as is 
the depth. Now, the argument of my friend on the other side 
is, that that well must first exist before the title can vest. 

Mr. Kandolph — The ordinances say so. 

Mr. Johnson — I will admit that, for the sake of argument. 
But what else do they say ? They say they constitute as their 
representative an officer to pass upon that question. How 
deep is it to be ? So many feet, — say thirty feet, and about four 
and a half wide. Who is to pass upon that, as between Mexico 
and the claimant ? Castillero presents himself and says : I have 
a well thirty feet deep, and four and a half feet wide. He takes 
the Judge — the umpire to pass upon it, as between himself and 
the Government — and that umpire decides that that well com- 
plies with the ordinances ; that it is thirty feet deep and four 
and a half feet wide ; and he gives him juridical possession. 
Some busy, prying body who wants to get the mine there- 
after, after we have gone into possession of the property on 
the faith that we have got the title, because it has been determ- 
ined by the proper officer that ' we have complied with that 
part of the ordinances, goes up on that mountain, puts down 
his measuring rod, and finds that, instead of being thirty feet 
deep, it is twenty-nine feet eleven inches, and that it falls short 
one inch of the width required. What a chance there is for a 
fortune ! There is a failure to dig out an additional inch ! 
Well, who is to try that ? Why, the man who relies upon the 
judgment of the Alcalde — Castillero, for example, in this case 
— will be very apt to believe that the Alcalde has measured 
that correctly. The question is brought before your Honors, 
or some other judiciary. I will imagine the present contest- 
ants to be the men. Justo Larios orLaurencel — (I don't want 
to say anything against him ; I am afraid it might get to Mont- 
gomery street. What I say of him, I wish to be understood 



104 

as said in a whisper) — tries to denounce the mine — to get the 
title to the mine ; and there is a contest between him and Cas- 
tillero as to whose is the mine. Castillero comes and says — 
Why, it is mine ; I say it is thirty feet deep and four and a 
half feet wide. The Alcalde has said so ; I acted on the faith 
of that — on the faith of the judgment of the Alcalde. But, 
your Honors say, that won't do. It must depend on the "fact." 
And then we want a survey, and your Honors are asked to 
go to the mountain and plunge down and see for yourselves if 
an inch is wanting ; and just as you discover the omission of 
an inch, just so will you decide that the title is in Castillero or 
the man contesting it ! 

May it please your Honors, the very moment it is ascer- 
tained that the object of the provision transferring the author- 
ity to the Alcalde, is to transfer it to him as & judicial authority, 
his judgment is conclusive. It cannot be collaterally inquired 
into. How is it to be directly inquired into? If the question 
thereafter arises as between the denouncer or register and the 
Government, and the Government think it is material that the 
ordinances should be complied with in reference to the well to 
the letter, why, they will refuse to confirm what has been done. 

But in this case they confirm, provided you believe their 
archives. They sanction the juridical possession. They make 
the grant ; they approve the conduct of the Alcalde ; and 
their attention was specifically called to it by Castillero him" 
self. He had been given three thousand varas. The authority 
of the Alcalde to make a grant to that extent did not exist. 
It was necessary therefore to., get a sanction to what had been 
done from the Government itself. That was done, as we say, 
so that the action of the Alcalde, involving all the principles 
in which the legality of that action is called in question now, 
was brought before the Supreme Government, passed upon by 
the Supreme Government, and confirmed by the Supreme 
Government. What right has the United States, who have 
derived title from Mexico after that confirmation, to go behind 
that confirmation, and hold that she will not be bound — al- 
though she had no right to say anything upon it at the time — 
because she is satisfied that the judgment of the Alcalde upon 






105 

the disputed point, and the judgment of the Supreme Govern- 
ment of Mexico, afterwards, were erroneous ? 

Now, may it please your Honors, I have wearied you much 
more than I could have wished, and I conclude this part of the 
argument, therefore, with saying that, looking to the evidence, 
as for as I have examined it, written or oral, the mine was dis- 
covered; the mine was denounced ; the mine was registered ; 
the title to the mine was granted by Mexico in all the forms 
of her laws, as applicable to the grant. Two leagues were also 
granted. 

But there is, as it is supposed, in the record evidence to show 
that all these title papers are "forged, fraudulent, fabricated, false, 
and antedated ; null and void, and of no effect whatever." I 
should like to know who prepared that bill. I should consider 
him a professional curiosity. I am sure it was not done here. A 
gentleman who puts so many interrogations would not be found 
repeating so much as that bill does ! 

Now, I have a word or two to say in relation to the fraud 
supposed to be established by these letters. 

Who is the man that brings it forth to the light of day ? Jas. 
Alexander Forbes. "Who is he? Who would believe him? 
Not i, says my friend Mr. Eandolph. 

Mr. Eandolph — Not his oivn statement. 

Mr. Johnson — Not his oiun statement ! Much more likely 
to believe it was untrue because he said it ! Well, he (Ean- 
dolph) surrenders him to our mercy ; and he has received it. 
I do not propose to extend it any further. He is not to be be- 
lieved. So much I suppose I can say on the authority of the 
counsel for the United States. Nothing, therefore, is to be 
credited at all, as bearing upon the question which I am now 
to discuss, but his letters, and the letters produced by him, 
coming from Alex. Forbes, Barron, Forbes & Co., or William 
Forbes. 

Now, what is the question ? Are the title papers upon 
which we rely now, and upon which we originally relied, 
" false, forged, fabricated and antedated ?" How many frauds 
were contemplated by James Alex. Forbes — how the proposi- 



106 

tion to perpetrate them was listened to by anybody connected 
with the mine — is perfectly immaterial to the question before 
your Honors, except so far as that fact bears on the integrity 
of the papers upon which we rely. 

I might as well state the law before I proceed to the facts. 
I have not the original case before me, but it is to be found 
in 4th Peters, pp. 295-310. Mr. Justice Baldwin, giving the 
opinion of the Court in the case of United States vs. Arre- 
dondo (6 Peters, page 716), declares them to be incontrovertible, 
and repeals them at length : 

First. That actual fraud is not to be presumed, but ought to 
be proved by the party who alleges it. 

Second. If the motive and design of an act may be traced to 
an honest and legitimate source equally as to a corrupt one, the 
former ought to be preferred. This is but a corollary to the 
preceding principle. 

Third. If the person against whom fraud is alleged should 
be proved to have been guilty of it in any number of instances, 
still if the particular act sought to be avoided be not shown 
to be tainted with fraud, it cannot be affected by these other 
frauds, unless in some way or other it be connected with or 
form a part of them. 

Now, I refer your Honors to an opinion pronounced by the 
Supreme Court at the last term — to be found in 22 Howard, 
page 315 — in the case of the United States vs. West, conducted 
by my brother who is before me, in behalf of the claimant. 
The Attorney General of the United States got it into his head 
that a title, fair and valid as against the United States by title 
derived from Mexico, became forfeited to the United States by 
reason of a fraudulent attempt afterwards to include within 
that title more land than the title itself embraced. The Su- 
preme Court say the fraud was proved beyond all doubt ; yet 
they tell us this : 

"We have only to observe that the fraudulent attempts to en- 
large the grant were made after California had been ceded to the 
United States, and though the proof of it is undeniable and was 
an attempt to defraud the United States, that cannot take away 
from the wife and children of West their claim to the grant 
which was made to him before California had been transferred by 
treaty. 



107 

Now I proceed, may it please your Honors, to inquire if 
there is in the evidence of those letters anything to lead the 
judgment to believe that this title upon which we stand was 
forged. 

Let us take up some of these letters. 

The letters of Alexander Forbes produced by James Alex. 
Forbes — not willingly, for he was terribly distressed when they 
were produced against his will ! — commence at page 382 of the 
Transcript. I have not time to read all. The first letter is 
dated May 11th, 1846, and speaks of the mine, saying: 

If quicksilver mines of value are discovered, it would be of 
immense interest for Mexico, as, owing to the scarcity and high 
price of this article, the poorer silver mines of Mexico cannot 
be worked. 

We will pass over the other letters r till we come to those 
which are supposed to contain the evidence of fraud. James 
Alex. Forbes says — and your Honors will find it at page 391 
— that he left at Tepic with Alexander Forbes, a memorandum 
of the documents which he thought ought to be obtained. He 
says he left that in May, 1849. 

What are those documents? (Page 391) : 

Memorandum of the documents which Don Andres Castillero 
will have to procure in Mexico : 

First — The full approbation and ratification by the Supreme 
Government of all the acts of the Alcalde of the District of San 
Jose, in Upper California, in the possession given by the said 
officer of the Quicksilver mine situated in his j urisdiction to Don 
Andres Castillero in December, 1845. 

That admits the existence of the original paper. He thought 
that of itself would not be sufficient, that there ought to be ob- 
tained a false approbation and ratification of that paper by the 
Supreme Government. What else does he want ? — 

Second. — An absolute and unconditional title of two leagues of 
land to Don Andres Castillero, specify iDg the following bound- 
aries : on the north by the lands of the rancho of San Yincente 
and Los Capitancillos ; on the east, south and west by vacant 
lands or vacant highlands. 

Third. — The dates of these documents will have to be ar- 



108 

ranged by Don Andres ; the testimony of them taken in due 
form, and besides certified to by the American Minister to Mex- 
ico, and transmitted to California as soon as possible. 

Now I pass by the inquiry, whether that memorandum was 
left there or not. I have no idea that it was ; but I admit it 
was, for the sake of argument. How does that prove that those 
papers we rely on here were not genuine? He (J. A. Forbes) 
wanted others ; why, you will see by-and-by. And he sug- 
gests what others he did want. The first was one emanating 
from the Government of Mexico itself fully proving and ratify- 
ing what the Alcalde had done in 1845. Well, he had done 
what the denouncement and registry proves he had done. He 
had given juridical possession ; he had attempted to transfer 
to the discoverer of the mine 3000 varas. What else does he 
want? 

There had been, as we say, a grant of two leagues before the 
date of this memorandum. What was that grant upon its 
face ? To whom was it directed ? What has been done by 
the party to whom it is directed? It was a grant of two 
leagues ; directed to the Governor of California, who was to 
put the grantee in possession of the two leagues. And there 
was an impression, that, standing by itself without any action 
on the part of the Governor of California delivering possession 
of the two leagues, it conveyed no title. But there was a place 
where a title could be obtained ; that place was Mexico. The 
Supreme Government, at the date . of that grant, had the au- 
thority to convey. They purposed to convey. Their convey- 
ance was such a form that it did not (as he thought) operate as 
a conveyance ; and now the property having passed, or being 
about to pass into the possession of the United States, it cannot 
be carried out as the Government of Mexico designed. What, 
then, do I want, says James Alex. Forbes. What he wants 
admits an antecedent grant, as your Honors will see on 
criticizing the second clause of the memorandum : 

An absolute and unconditional title of two leagues of land to 
Don Andres Castillero, specifying the following boundaries — 

What "two leagues of land?" The two leagues of land 



109 

contained in the dispatch of Castillo Lanzas, made on the 23d 
of May, 1846. That was a grant in colonization, a conditional 
grant. That was not an " absolute grant." It looked to the 
occurrence of something to be done thereafter, in order to give 
title to the land granted to the grantee. " What you must 
have, must go back and be dated at the time that supposed 
conditional grant was made. You must get from that Govern- 
ment a grant upon its face of the two leagues now held under 
a form of grant You must get a grant, which upon its face 
shall be absolute and unconditional." That is what he wanted. 

But that is not all. The criticism which I am about to make 
on the letter I am about to read, will be equally applicable to 
other letters with which I will not fatigue the Court. 

We produced the letter of May 5th, 1847 ; which your 
Honors will find at page 842. Why we produced it I will tell 
you in a moment. It is a letter from James Alex. Forbes, and 
its authenticity is not doubted. He admitted it himself. What 
does he say in it ? 

I have done everything that I possibly could do for the 
advancement of }^our views in this undertaking, and have 
communicated to Mr. Walkinshaw all the information relative 
to the necessary measures that must be taken in order to pre- 
clude the possibility of suffering an intrusion by the Americans, 
or by any other persons who may find a pretext for litigation, 
and I now lay before you my views, that you may see the ne- 
cessity for immediate action. It is of the most vital importance 
to obtain from the Supreme Government of Mexico, a positive, 
formal, and unconditional grant of the two sitios of land conceded 
to D. Andres Castillero — 

When conceded ? Before the date of this letter of the 5th of 
May, 1847. What concession had been made? What is the 
date of the concession ? The concession made by Castillo Lan- 
zas, dated 23d of May, 1846 : 

— " of the two sitios of land conceded to D. Andres Castillero, 
according to the decree appended to the contract" — [which was then 
before him, and he had evidence of it] — "and also an unquali- 
fied ratification of the juridical possession which WAS given of the 
mine by the local authorities of this jurisdiction^ including, if pos- 



110 

sible, the three thousand varas of land given in that possession 
as a gratification to the discoverers." 

That is precisely what the juridical possession attempted 
to do. 

The documents should be made out in the name of D. An- 
dres Castillero and Socios. I think that it will not be difficult 
to obtain these documents, on making known to the Supreme 
Government that this Departmental G-overnment is completely 
" acefalo," in consequence of which the possession of the two sitios 
ordered to he given by the dispatch of Senor Castillo Lanzas has 
not been obtained, and cannot be obtained, nor even mentioned 
without imminent risk of opposition on the part of the Ameri- 
can Government in this Department. It is indispensable that 
the title and ratification of possession should be of the date of 
the decree of Senor Lanzas, 

Now, stopping there, is it not palpable that he was finding 
fault, suggesting doubts as to this title, not upon the ground 
that the title which we now produce was not fairly obtained, 
but because, although fairly obtained, it had not positively 
passed title? 

First. Because upon the face of the Lanzas grant the title 
was made to be dependent upon the subsequent delivery of 
possession, as a condition precedent to the vesting of title. 

Second. Upon the ground that the grant of the Alcalde, by 
whom the juridical possession of 3000 varas was given as a 
gratification to the discoverer, was defective because of want 
of authority on the part of the Alcalde to make any such grant. 

Go to Mexico ! These papers are genuine. I admit that ; 
nobody can doubt that. I have in the contract of ratification 
now before me, evidence of the Lanzas grant. I know it was 
dated on the 23d of May, 1846. I know the Alcalde had given 
juridical possession in December, 1845. I know all that. But 
such is the condition of the Government here, that won't do. 
The Government here is completely " acefalo ;" and because 
it is so, possession is not to be obtained of the two leagues con- 
ceded by the Castillo Lanzas decree, cannot be obtained, and it 
will even be dangerous to mention that there exists, in fact, 
any such dispatch. Go, therefore, and if you can, get the Gov- 
ernment to give you instead a " positive, formal and uncondi- 



Ill 

tional grant" of the two sitios. Also, if you can, get an unqual- 
ified ratification of the juridical possession which was given of 
the mine and the 3000 varas as a gratification to the discoverer. 

Then he suggests what will be necessary to secure the titles. 
And he goes on further : 

With respect to the ratification of the contract between your- 
self and Mr. Macnamara, for the habilitacion of the mine, as 
promised by Don Andres Castillero, I, as attorney or procura- 
tor of the two Robles, send that document, in which I ratify 
(in their name) the contract, and make allusion to the privileges 
conceded by the Mexican Government to the owners of quick- 
silver mines ; for, in lieu of those privileges, it was expressly 
stipulated by Don Andres Castillero and his socios, that they 
should all participate in the tivo sitios of land to be asked of the 
Departmental Government. 

Now come to the next letter ; to be found at page 844. This 
is dated October 28th, 1849 : 

I have been detained here until the present moment, occu- 
pied in carrying out the arrangements explained to B., F. & Co., 
in my letters to them of yesterday's date, and to which I beg 
to refer you. My reasons for purchasing the land of that part 
of the farm of the Berreyesas which I pointed out (to Mr. 
Alexander Forbes and yourself) on the map of New Almaden, 
are : First Because I fear the destruction of some important 
papers of the original registry of the mine, and which I believe 
will be effected, or, that on those very documents of registry a 
question will arise as to the legality of the possession ; Second. 
Because no posterior grant of the Government could authorize 
the occupation of the land of the Berreyesas, on which the 
mine is declared to be situated in the original espediente of 
registry. 

Then he admits the original espediente of registry ! 

Third, Because I am convinced that Walkinshaw and his 
party have endeavored to make the purchase of the land, fear- 
ing that the denunciation will prove fruitless, in all of which 
cases they will come forward as the owners of the land com- 
prising the mine and hacienda. Therefore, it is of great risk 
for me to disregard the claims of the Berreyesas, and to set up 
a dispute upon boundaries, when I am uncertain as to the pro- 



112 

duction of the documents held by Walkinshaw, and of the 
validity (in the accursed Courts of this country) of the original 
registry of the mine. 

He meant State Courts, I suppose. 

Mk. Kandolph — He meant the " accursed Courts" of 1849. 

Mr. Johnson — It applies as much now, as then, I suppose I 
Now to page 846. 

I now desire to call your attention to the following important 
matter. In order to secure the possession of the land which was 
granted to Castillero and his associates upon the mining possession 
of New Almaden, you must bear in mind that that document was 
not recorded in this country, but that it remains in the hands 
of Walkinshaw ; that in all probability it will be destroyed, if 
it has not been destroyed already. That in view of these facts, 
and the deep plans laid by Walkinshaw, it behooves you to 
obtain from the Supreme Government of Mexico, the full and 
positive grant of the two sitios of land upon the mine of New Al- 
maden, under the date of the order to Castillero from Castillo 
Lanzas, bearing in mind that this grant must express the entire 
approbation of the Supreme Government of the concessions 
made bij the local authorities, or Alcaldes, of the District of San 
Jose, of the original grant or registration of the mine. 

I have not time nor strength to give all these letters. There 
are various other letters which bear the same interpretation, and 
nothing else. 

My friend, Mr. Eandolph, suggested the other day that the 
letter, to which I am about to advert now, could not have been 
produced in consequence of what was made known to Forbes ; 
because a copy of that letter is proven to have been in the 
possession of Mr. William E. Barron about the 1st of July. 
Now the facts are these. Forbes is examined first on the 14th, 
and consecutively to the 19th of December, 1857, (page 433 to 
490). At that examination he said over and over again, that 
he had no knowledge of a grant from Castillo Lanzas, nor of 
the other papers on which we rely. His object was to show 
that the very grant on which we are relying now, came into 
existence afterwards; that it was "false, fraudulent, forged and 



113 

fabricated." My brother, who conducted the cross-examination 
on the part of the claimant, produced this letter at the exam- 
ination, and asked him if it was a genuine letter — one written 
by himself on the 14th of July, 1817. And that letter on its 
face deals with the grant of the 23d of May, 1816, (Castillo 
Lanzas grant); admits it. On page 511, you wilHind that let- 
ter. Let me read a word or two from it : 

I have the pleasure to communicate to you, that up to the 
present time nothing has occurred to affect the quiet occupation 
of the mine of Almaden. * * * * I was presented yes- 
terday with a splendid specimen of quicksilver ore, from a spot 
within or near the limits of the two leagues conceded to Castillero 
and socios. * * I immediately had an interview with the dis- 
coverers, and informed them that if any such vein did in reality 
exist without the limits of the two leagues, and documents would 
be manifested of the denunciation, I was ready to enter into a 
contract in the name of the company of Almaden for working 
the vein, but that I could not permit any claim or operation 
to be entered upon, until the land should be measured. 

That is to say, until the two leagues should be measured. So 
that in this letter he made Uhe admission that, on the 11th of 
July, 1817, he knew there was a grant of two leagues of land 
made to Castillero and socios, which is the Lanzas grant. He 
was called up, and that letter was presented to him, and he 
tried to get clear of the discovery. He said, on the original 
examinations all he intended to say was, that he had not seen 
the original papers ; that he never meant to deny that he had 
seen copies of the grant! A very intelligent and acute man, 
as evidenced from his examination ! 

We called him again on the 30th of July, 1858. The exam- 
ination will be found on page 837. We produced to him other 
letters ; one dated May 5, 1817. And that letter of the 5th 
of May, 1817, was not more fatal to the truth of his testimony 
as given on the original direct examination, than was the letter 
of the 14th of July, 1817. The letter of the 5th of May, 
1847, entered more into detail ; that is all. 

Weil, that whole theory was at an end ; that whole scheme 
is blown up. The conspiracy — or call it by whatever term you 
think proper — had failed, and promised to fail absolutely. The 

8 



114 

production of his letter of the 14th of July, 1847, told him 
that the claimants were in possession of evidence damning to 
the truth of his own story, and fatal to his own reputation. 

He had sworn that he had no knowledge of a grant. The 
letter of the 14th of July recognizes a grant as situated upon 
the mining possession ; for, upon the faith of the grant he ad- 
monished those claiming under the Cook title not to interfere 
with that particular mine until it was ascertained whether it 
was outside or inside the limits of the concession made to Cas- 
tillero by the Lanzas grant. 

Well, when he comes up again, with that letter before him, 
he/orgets the letter of the 28th of March, 1848. That letter 
you will find at page 864. 

The letters which he had sold to Laurencel before, and for 
which he had received from Laurencel $20,000, all looked to 
the obtaining of papers from Mexico. He stated that there 
were no such papers in existence as the papers which we pro- 
duce now, and upon which we rely for title. We prove to him 
by his own letter of the 14th of July, 1847, that, as far back 
as July, 1847, he admitted the title papers upon which we rely 
without any question ; that he held the property by virtue of 
them. 

It was evident, then, may it please your Honors, that the 
title could not have been manufactured in consequence of his 
suggestions made in 1849. 

And then he manufactures this letter of the 28th of March, 
in which it is said for the first time, and the only time, that 
the documents procured by Castillero in Mexico were all ob- 
tained long after the occupation of California by the Americans. 
This is dated in March, 1848. The letters of 1849 were utterly 
inconsistent with the truth of this statement. 

He produces a copy of a letter from Alex. Forbes, in which 
he mentions as a reason why he would not give as much as 
was asked for some additional interest in the mine : — " that in 
fact, the documents procured by Castillero in Mexico, as his 
title to the mine and lands, were all obtained long after the oc- 
cupation of California by the Americans." 

That is not referred to anywhere in these letters, may it 



115 

please your Honors. On the contrary, as I have just said, the 
letters which I have read, dated in October and December, and 
all the other letters on the subject, are inconsistent with the as- 
sertion here apparently incidentally made, that all the papers 
on which we now rely were fraudulently manufactured. 

But there is another thing in that letter to which your Hon- 
ors 7 attention has not been called, which demonstrates itself a 
forgery, and that is this. 

It speaks of a date in 1848, not supposed to be material to 
the validity of this title. His letters in 1849 suggested only 
that the papers he desired to obtain should bear the same 
date as that of the Lanzas decree ; that was all. That date 
was before the occupation of the country by the United 
States. And here he tells us, he makes Alex. Forbes write 
to him. (Page 



The documents procured by Castillero in Mexico, as his title 
to the mine and lands, were all obtained long after the occupa- 
tion of California by the Americans. 

You may look in vain through this correspondence to find 
any suggestion that the date of the war was material at all. 
The war was not then supposed to operate upon the grants 
made after the war was declared. But the time this letter was 
forged it was considered material. I mean to say that on the 
28th of March, 1848, the question as to the occupation by the 
American army, as far as that fact might touch the validity of 
grants made by Mexico, was not considered material at all. 
The question had then never arisen. It first came up before 
Judge Hoffman several years afterwards. 

Me. Bandolph — Did the people think that these grants 
could be made after the occupation by the Americans ? 

Mr. Johnson — Suppose that they did? I do not say that 
they could not. "What sort of occupation was it ? Did any- 
body know at the time of that occupation that it was the pur- 
pose of the United States to hold on ? President Polk said, 
— and he said it with great truth — that he was anxious to put 
an end to the war on any terms. He got just about as sick of 



116 

the war as Mexico did. If Mexico had waited a little longer, 
perhaps she would not have been compelled to part with 
California. However, this is out of the case. 

Me. Eandolph — Quien sale f 

Mr. Johnson — Now it is clear as the sun, that the whole of 
this case demonstrates the integrity of the title papers upon 
which we rely ; and if, in point of law, these title papers con- 
stitute a claim which the Courts of the United States are to 
respect, because it is a claim which the Mexican Government 
would have respected, then we are entitled to a confirmation, 
absolute and unqualified, at the hands of this Court. 

I have, I believe, referred to all the matters material to the 
issues immediately involved in this case. 

If the Court will permit me, before I conclude, I desire to 
refer to a matter personal to myself. I wish to give expression 
to the very sincere gratification with which, in common with 
my brother (Mr. Benjamin), we have received the kindness of 
our brethren of the Bar, and especially the kindness and 
civility of your Honors upon the Bench ; and, what was still 
more gratifying to us, your courtesies in social life. 

Mr. Eandolph — Do your Honors propose to continue the 
setting this evening ? 

Mr. Justice McAllister — Do you wish to reply to Mr. 
Johnson ? 

Mr. Eandolph — I feel that it is incumbent upon me to 
make some reply so far as I may be able to do so. I am very 
much fatigued, as I suppose the Court are. At the same time 
I dislike very much to ask anybody connected with this case 
to come back here on another day of the next week. If your 
Honors will set this evening I will go on with my reply — if so 
you prefer. 

Mr. Justice McAllister — I suppose that on Monday, 
— being the day before election — the Court will have to set all 
day to naturalize citizens. 



117 

Mr. Johnson — (Sotto voce.) "We have quite enough of 
them already, if their Honors please. 

Mr. Randolph, (inquiringly) — I had better go on then 
this evening, sirs ? 

After consultation the Court ordered an adjournment until 
Monday, at 2 P. M. 









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